                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1348
                              Filed August 2, 2017


COLLIN THOMPSON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Jeffrey J.

Larson, Judge.



      Collin Thompson appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Marti D. Nerenstone of Nerenstone Law, Council Bluffs, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

      Collin Thompson pled guilty to first-degree burglary, second-degree

robbery, third-degree kidnapping, and two counts of aggravated assault while

displaying a dangerous weapon, in connection with the robbery of a Council

Bluffs mall.   Two years later, he filed a postconviction relief application and

amended application alleging a variety of errors. The district court denied the

application on a stipulated record. Thompson appealed.

      Thompson contends (1) his trial and/or postconviction attorney was

ineffective in failing to (A) “provide him with all materials related to his case”;

(B) challenge the factual basis for two counts of aggravated assault rather than a

single count; (C) seek merger of the assault and second-degree robbery

convictions; (D) challenge the factual basis for the kidnapping charge;

(E) “demand[] [the] preparation” of a PSI report; and (F) have the postconviction

relief hearing reported; (2) the district court abused its discretion in failing to

“provide explicit and detailed reasons for the imposition of consecutive

sentences”; and (3) cumulative errors mandate reversal.

I.    Ineffective Assistance of Counsel

      To prevail on his ineffective assistance claims, Thompson must show (1)

counsel breached an essential duty and (2) prejudice resulted.       Strickland v.

Washington, 466 U.S. 668, 687 (1984). If the court concludes Thompson “has

failed to establish either of these elements, [the court] need not address the

remaining element.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).
                                          3

A.     Failure to Provide Materials

       Thompson contends his “constitutional rights were violated by the failure

of defense counsel to provide him with all materials related to his case.”

Specifically, Thompson claims his trial attorney did not give him (1) a copy of

additional minutes of testimony and (2) transcripts of two depositions. On our de

novo review, we are convinced Thompson could not prove a breach or prejudice.

       Thompson’s trial attorney testified that it was the “standard practice” of her

office to send or hand-deliver clients a copy of the original trial information and

the additional minutes of testimony. As for the depositions, she noted Thompson

“was present through all the depositions.”

       Thompson suggests his presence was insufficient. He asserts he needed

the deposition transcripts to highlight “discrepancies between the sworn

statements given during the depositions and the unsworn statements asserted in

the various minutes of testimony.” But as his trial attorney pointed out, “It is often

the case that in deposition there are contradictions to what the Minutes of

Testimony say.” She elaborated, “[T]he reason we take depositions is ·because

sometimes the minutes do not accurately·reflect what a witness will actually say

occurred.” She expressed little concern “about exactly the discrepancies in the

minutes,” focusing instead on the contents of the deposition. Given counsel’s

practice of providing and discussing the minutes with her clients as well as

Thompson’s attendance at the depositions, we conclude Thompson’s trial

attorney did not breach an essential duty.

       The postconviction court also rejected Thompson’s assertion that his

attorney failed to give him the additional minutes on prejudice grounds, finding
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Thompson’s “‘discrepancies’ [were] often nothing more than a misrepresentation

of the Trial Information, the deposition testimony, or both,” and Thompson failed

to show “how he would be better off at trial than under the plea agreement.” We

agree with this assessment. As Thompson’s trial attorney stated, Thompson

faced a life sentence on the State’s original charge of first-degree kidnapping, the

deposition testimony of a mall security guard who was assaulted and robbed

supported a finding of guilt on this charge, and her goal was “to avoid life in

prison for Mr. Thompson.” We affirm the district court’s denial of this claim.

B.     Factual Basis for Two Counts of Aggravated Assault

       Thompson contends his trial attorney was ineffective in allowing him to

plead guilty to two counts of aggravated assault while displaying a dangerous

weapon and his postconviction attorney was ineffective in failing to raise this

issue. He asserts, “Even if, arguably, [one] aggravated assault in this case was

committed,” “[t]wo assaults were non-existent.”

       Counsel breaches an essential duty if counsel permits a defendant to

plead guilty and waive the right to file a motion in arrest of judgment where there

is no factual basis to support the guilty plea. See Rhoades v. State, 848 N.W.2d

22, 29 (Iowa 2014). In such cases, prejudice is presumed. Id.

       According to the original minutes of testimony, the mall security guard was

slated to testify that

       three male suspects wearing ski masks were inside the mall as she
       was making her rounds . . . . [S]he was pushed to the ground and
       struck her head, causing injury. She was then bound with duct tape
       and held at gunpoint by one suspect while the other two burglarized
       the stores.

The additional minutes stated the security guard would testify that
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       she felt the barrel of the gun to the back of her head and a male
       said, “If you move, I will shoot” and, “Shut up or I will shoot.”
       Approximately forty-five minutes went by, which felt like a long time.
       Every time she tried to move to help with the cramps, the male
       would say, “If you move I will shoot.” He kept saying it over and
       over again with more forcefulness and for emphasis he would
       shove or jab her in the back of her head with the shotgun.

The State asserts the first assault occurred when Thompson “shoved her down

pretty hard, pushing her with his hand,” and the second assault encompassed

“the threats to shoot her.”     The quoted portions of the minutes support this

assertion. See State v. Velez, 829 N.W.2d 572, 583-84 (Iowa 2013) (“Since

either a single blow or a single series of blows caused each serious injury, we

find that there were more than two completed acts, as [the victim] suffered at

least two serious injuries.”); State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982)

(“A defendant should not be allowed to repeatedly assault his victim and fall back

on the argument his conduct constitutes but one crime.”).            We conclude

Thompson’s trial attorney did not breach an essential duty in failing to challenge

the factual basis for two assaults. Accordingly, his postconviction attorney could

not have been ineffective in failing to raise this issue.

C.     Merger

       Thompson contends his assault charges “should have been considered as

lesser included offenses of the robbery charge, and merged into it.” See Iowa

Code § 701.9 (2015) (stating “[n]o person shall be convicted of a public offense

which is necessarily included in another public offense of which the person is

convicted”).   He argues his trial attorney was ineffective in “allowing [him] to

plead to . . . charges which are lesser included charges,” and postconviction
                                         6

counsel was ineffective in failing to raise the issue. Thompson cites State v.

Love, 858 N.W.2d 721, 725 (Iowa 2015) in support of this argument. The court

there held the defendant’s convictions for assault with intent and willful injury

should have merged, but its conclusion was based on “the unique circumstances

presented by the serial instructions”—“the jury was never asked to do the fact-

finding necessary to support two separate assaults.” Love, 858 N.W.2d at 725.

As a concurring opinion pointed out, the case was distinguishable from those

“involv[ing] guilty pleas in which the only issue was whether there was a factual

basis to conclude the defendant had committed multiple crimes.” See id. at 726

(Mansfield, J., concurring specially) (citing State v. Gines, 844 N.W.2d 437, 441

(Iowa 2014), and Velez, 829 N.W.2d at 577).          And as the concurrence also

stated, “[M]erger would not occur so long as substantial evidence supported a

determination that two separate criminal acts had occurred.” Id. at 728.

       There was no merger issue here because the minutes of testimony

established an independent factual basis for robbery and for two separate

assaults. Specifically, the security guard was slated to testify

       she heard, “Let’s go.” And the gunman said, “What about her
       rings?” She tried to pull her hands under her and said, “No, No,
       No.” The gunman grabbed her hands and started pulling her rings
       off; he took three rings. He was yanking her fingers really hard and
       was using two hands. He said, “We could cut her fingers off.” He
       finally pulled the rings off. He then hit/shoved her on her upper left
       neck . . . . [S]he suffered an injury to her forehead and to her right
       temple.

We conclude neither Thompson’s trial attorney nor his postconviction attorney

breached an essential duty in failing to pursue merger of the assault convictions

with the robbery conviction.
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D.    Factual Basis for Kidnapping Conviction

      Thompson essentially contends the record lacked a factual basis for the

third-degree kidnapping charge, his trial attorney should not have allowed him to

plead guilty to the charge, and his postconviction attorney was ineffective in

failing to raise the issue. Thompson focuses on the confinement element of

kidnapping. See Iowa Code § 710.1(4). “[C]onfinement or removal sufficient to

support a charge of kidnapping may exist if the evidence shows the confinement

or removal substantially increased the risk of harm, significantly lessened the risk

of detection, or significantly facilitated the escape of the perpetrator.” State v.

Robinson, 859 N.W.2d 464, 478 (Iowa 2015). In Thompson’s view, “This case

involves a burglary and robbery of a mall.      Although the security guard was

detained, essentially [she] stumbled upon the intruders by accident,” and her

confinement “was incidental to the burglary.”

      To the contrary, the record reveals the guard’s confinement substantially

increased the risk of harm to her. The guard worked the 11:00 p.m. to 7:00 a.m.

shift at the mall. As she was turning a corner on one of her rounds at 3:00 or

3:15 in the morning, three men assaulted her. As noted, one of the men stated,

“[G]et down or I’ll shoot.” The guard’s wrists were duct taped and she was

“[f]orced[] down to the ground” with “the gun to the back of” her “head.” Once

she was on the ground, her legs and half her face were also duct taped. She did

not have her radio to make a call, even if she could speak. The closest person in

the mall was a night baker in a restaurant, a five or ten minute walk away. Based

on these facts, we are persuaded there was a factual basis supporting the

element of confinement. See State v. Roche, No. 14-2052, 2016 WL 1130291,
                                        8


at *2 (Iowa Ct. App. Mar. 23, 2016) (stating a reasonable juror could have found

confinement was more than incidental to sexual abuse where defendant used a

knife, taped the victim’s mouth, threatened to harm her child when she

screamed, transferred her to the bedroom, and removed her cell phone); State v.

Ronnau, No. 14-0787, 2016 WL 351314, at *5 (Iowa Ct. App. Jan. 27, 2016)

(affirming conviction where defendant strangled woman until she passed out,

transported her to the other side of the street near a bush, attempted to rip out

her tongue when she tried screaming, and threatened to kill her); State v. Norem,

No. 14-1524, 2016 WL 146237, at *5-6 (Iowa Ct. App. Jan. 13, 2016) (affirming

conviction where defendant beat his wife, forced her into a car, drove her home,

beat her again, and forced her to perform multiple sex acts); State v. Mesenbrink,

No. 15-0054, 2015 WL 7075826, at *4 (Iowa Ct. App. Nov. 12, 2015) (affirming

conviction where defendant grabbed woman, held her at knifepoint, repeatedly

told her he had to kill her, demanded she shut-up, and pushed her between the

bed and the wall); State v. Schildberg, No. 14-1581, 2015 WL 4642503, at *1-2

(Iowa Ct. App. Aug. 5, 2015) (affirming conviction where defendant pulled his

girlfriend out of bed by her hair, broke one of her ribs, choked her with his legs

around her neck, forced her to have sex, made her go with him to a gas station

so she would not escape, kept her phone and purse away from her, and did not

allow her to leave the residence when they returned). Neither his trial attorney

nor his postconviction attorney breached an essential duty in failing to challenge

the factual basis for the kidnapping charge.
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E.     Failure to Demand Preparation of PSI Report

       Thompson challenges his trial attorney’s “failure to demand the

preparation of a presentence investigation report, in accordance with Iowa Code

section 901.2(2)(b), prior to sentencing.”       The Iowa Supreme Court has

interpreted this provision to mean that a court cannot waive the preparation of a

PSI report but can waive its use. State v. Thompson, 494 N.W.2d 239, 241

(Iowa 1992).

       Thompson requested the preparation of a PSI report, and the district court

ordered its preparation. At the plea hearing, Thompson asked to proceed with

immediate sentencing. His attorney stated,

       Your Honor, the—we have ordered a Presentence Investigation,
       and it is going to be prepared for purposes of use in the
       Department of Corrections, but he does wish to waive it for use at
       sentencing today.

The district court asked Thompson if he agreed. Thompson responded, “Yes,

Your Honor.” We conclude Thompson’s trial attorney did not breach an essential

duty in her handling of the PSI report. See id. (observing the defendant was

aware the PSI report could be considered by the court for sentencing purposes

but he “did not want to wait for the report to be completed and chose immediate

sentencing”).

F.     Failure to Make Record of PCR Proceedings

       Thompson challenges his postconviction attorney’s failure to “make sure

that the proceedings were reported.” See Iowa Code § 822.7 (“A record of the

proceedings shall be made and preserved.”). However, the parties agreed to

submit the matter to the court “by and through trial briefs and a stipulated record,”
                                        10


including “the record in [Thompson’s] underlying criminal case” and certain

depositions.   This court has stated section 822.7 “applies to evidentiary

hearings.” Dorris v. State, No. 16-0488, 2017 WL 104948, at *2 (Iowa Ct. App.

Jan. 11, 2017). Because the parties stipulated to the evidence that would be

considered, we conclude section 822.7 was not violated.

II.   Reasons for Consecutive Sentences

      Thompson contends the district court abused its discretion in failing to

“provide explicit and detailed reasons for the imposition of consecutive

sentences.” He argues he preserved error on this issue “by the filing of the

applications for postconviction relief.” The simple act of filing the application is

insufficient to preserve error. The issue ordinarily must be raised and decided by

the district court before we will consider it on appeal. See Lamasters v. State,

821 N.W.2d 856, 862 (Iowa 2012).

      We recognize an exception to our error-preservation rules for challenges

to illegal sentences. “The court may correct an illegal sentence at any time.” See

Iowa R. Crim. P. 2.24(5)(a). Thompson’s assertion that the sentencing court

failed to articulate adequate reasons for the imposition of consecutive sentences

does not amount to a challenge to the legality of his sentence. See Tindell v.

State, 629 N.W.2d 357, 360 (Iowa 2001) (“[A] claim of procedural error is not a

claim of illegal sentence, and therefore, it is precluded by our normal error-

preservation rules.”); State v. Wilson, 294 N.W.2d 824, 824-25 (Iowa 1980)

(noting no statement of reasons was given for sentence but concluding rule

allowing illegal sentences to be raised at any time did not include challenge to

this procedural defect); State v. Means, No. 11-0492, 2012 WL 3195975, at *3
                                         11


(Iowa Ct. App. Aug. 8, 2012) (stating a claim that sentencing court failed to

articulate reasons for consecutive sentences was a challenge to how the

sentence was imposed rather than a challenge to the actual sentence and could

not be raised at any time); see also State v. Bruegger, 773 N.W.2d 862, 870-71

(Iowa 2009) (broadening the definition of an “illegal sentence” to encompass

“claims that the court lacked the power to impose the sentence or that the

sentence itself is somehow inherently legally flawed, including claims that the

sentence is outside the statutory bounds or that the sentence itself is

unconstitutional” but citing list of sentencing challenges still subject to error-

preservation rules). We conclude Thompson failed to preserve error.

III.   Structural Error / Cumulative Prejudice

       Thompson contends his “defense counsel’s performance was so deficient

as to cause structural error,” and the combined prejudice of counsels’ errors

denied him a fair trial. See, e.g., State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012)

(stating reviewing courts “should look to the cumulative effect of counsel’s errors

to determine whether the defendant satisfied the prejudice prong of the

Strickland test”). We discern no structural error and, having found no individual

errors, we decline to find cumulative error.

       We affirm the denial of Thompson’s postconviction relief application.

       AFFIRMED.
