                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0624
                               Filed March 20, 2019


COREY ALLEN TROTT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Calhoun County, William C. Ostlund,

Judge.



      Applicant appeals his denial for postconviction relief. AFFIRMED.



      Joel Baxter of Wild, Baxter & Sand, PC, Guthrie Center, for appellant.

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

General, for appellee State.



      Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
                                          2


VOGEL, Chief Judge.

       Corey Trott appeals the denial of his application for postconviction relief

(PCR). He raises multiple ineffective-assistance-of-counsel claims against his trial

counsel, appellate counsel, and PCR counsel. In addition, Trott’s pro se brief

raises various other issues. We affirm the denial of PCR and preserve some of

the ineffective-assistance claims for further postconviction proceedings.

I.     Background Facts and Proceedings

       On September 8, 2013, Trott allegedly assaulted his mother at his home.

Officers arrived to the home and when they tried to go into the residence, Trott

shot at and killed one officer. In September 2014, Trott was found guilty of first-

degree murder and was sentenced to life imprisonment without parole. Trott

appealed his conviction to our court where he asserted his right to counsel was

violated and argued the motion to suppress his statements made to law

enforcement should have been granted. State v. Trott, No. 14-1608, 2015 WL

9450670, at *1 (Iowa Ct. App. Dec. 23, 2015). We affirmed the conviction and

concluded Trott failed to preserve the right-to-counsel issue. Id. at *8. We further

stated, “Trott’s right to remain silent was scrupulously honored and he knowingly

and voluntarily waived the right [to remain silent].” Id.

       Trott then filed an application for PCR in December 2016. A hearing was

held on January 4, 2018. The district court denied Trott’s application on March 7,

2018. Trott appeals.

II.    Standard of Review

       “A claim of ineffective assistance of counsel requires a de novo review

because the claim is derived from the Sixth Amendment of the United States
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Constitution.” Bowman v. State, 710 N.W.2d 200, 204 (Iowa 2006). To prevail on

an ineffective-assistance-of-counsel claim, the claimant must show counsel failed

to perform an essential duty and such failure resulted in prejudice. State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668,

687–88 (1984)). Both must be proven by a preponderance of the evidence.

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

III.   Ineffective Assistance by Trial Counsel During Jury Selection

       Trott first asserts his trial counsel provided ineffective assistance when trial

counsel allowed two allegedly biased jurors to remain on the jury. The State

argues trial counsel had no duty to make challenges for cause because neither

juror had a fixed opinion. Also, the State argues Trott cannot establish prejudice

because he does not show how the verdict would change with two different jurors.

       Trott argues the two jurors were biased because each were related to a law

enforcement officer. One juror’s brother was a deputy sheriff, so trial counsel

engaged in further questioning:

               [TRIAL COUNSEL]: Now, having your brother as a law
       enforcement officer, will that color your perception of this case; or do
       you think you can be fair and impartial? Do you think that makes any
       difference?
               PROSPECTIVE JUROR [B]: I think it makes a difference
       whereas it came to my front door. I mean, I just never realized his
       job was so—so hard. You know what I mean? I didn’t know he could
       just lose his life as easy as this. That’s the only thing that I think of
       because he was on the SWAT team; he did all of the stuff you talked
       about earlier. But now, as far as myself, I can’t imagine.
               [TRIAL COUNSEL]: Do you think you can be fair and impartial
       to [Trott] and hold the State to its burden?
               PROSPECTIVE JUROR [B]: Right.
               [TRIAL COUNSEL]: Regardless of your brother’s status?
               ....
               PROSPECTIVE JUROR [B]: Yes.
                                            4


The second juror had a son who had recently graduated from the police academy

but had not become active yet. When trial counsel asked if the juror could still be

fair and impartial, the juror responded, “I do believe I can be.”

       At the PCR hearing, trial counsel testified that he did not make any

challenges for cause regarding the two jurors and agreed if he had, the makeup of

the jury would have differed; however, he stated, “I don’t know if it would have

made a significant difference or not.” Also, he testified he did not use preemptory

strikes on the two jurors because each stated they could be fair and impartial. In

the PCR denial, the district court found Trott had not shown he was prejudiced by

trial counsel’s failure to strike the two jurors at issue.

       For the first requirement of the ineffective-assistance claim, “counsel’s

performance is measured ‘against the standard of a reasonably competent

practitioner with the presumption that the attorney performed his [or her] duties in

a competent manner.’” Straw, 709 N.W.2d at 133 (quoting State v. Dalton, 674

N.W.2d 111, 119 (Iowa 2004)). Counsel may pursue removal of a potential juror

for cause if said juror has “formed or expressed such an opinion as to the guilt or

innocence of the defendant as would prevent the juror from rendering a true verdict

upon the evidence submitted on the trial.” Iowa R. Crim. P. 2.18(5)(k). In order to

show counsel breached an essential duty, Trott must show the jurors “held a fixed

opinion of the merits of the case such that he [or she] could not judge impartially

the guilt or innocence of the defendant.” State v. Hardin, 498 N.W.2d 677, 682

(Iowa 1993).

       Despite being related to law enforcement officers, both jurors stated the

relationship would not inhibit their ability to be fair and impartial. At the PCR
                                          5


hearing, trial counsel testified the juror’s statements convinced him that removal

was not necessary. We agree with the district court that the record shows the

jurors could be fair and impartial. Therefore, trial counsel did not breach an

essential duty by not striking the jurors, and we affirm the PCR court on this issue.

See id.; see also Ledezma, 626 N.W.2d at 142 (noting “both elements do not

always need to be addressed” by the court because if one element is not met then

ineffective assistance has not been shown).

IV.    Ineffective Assistance by PCR Counsel

       A. PCR Counsel’s Failure to Establish a Sufficient Record

       Trott asserts his PCR counsel’s “[f]ailure to provide a sufficient record

constitutes ineffective assistance of counsel. That lack of a sufficient record gives

rise to a reasonable probability that the outcome of the trial on [Trott’s] Application

would have been different.” Specifically, he claims his PCR counsel failed to do

the following: call more witnesses, including the jury members; request the district

court take judicial notice of the criminal file; submit the entire transcript of the

criminal trial; and submit the interrogation video or the transcript for the video.

Also, he argues the record was not sufficient to address his pro se claims. The

State also asserts the record is insufficient to grant relief on any of these issues in

this appeal.

       “We must now decide whether these claims present grounds which may be

addressed in this appeal or preserved for further postconviction proceedings.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Without a complete record to

flesh out Trott’s assertions, we are unable to address these issues adequately,

and therefore, we preserve this claim for another postconviction-relief proceeding.
                                            6

See State v. Smith, 573 N.W.2d 14, 22 (Iowa 1997) (“Because the record is not

adequate to evaluate these claims, they are preserved for another postconviction

relief proceeding.”).

       B. PCR Counsel’s Failure to Raise Issue of Trial Counsel’s Failure to

           Call an Expert

       Trott also asserts PCR counsel failed to raise an ineffective-assistance

claim against Trott’s trial counsel for failing to call an expert witness.1 At the PCR

hearing, trial counsel was asked why he did not attempt to call an expert witness

to opine as to whether the shot that was fired was done at an angle that it could

have hit the ground or at an angle that was more likely intended to hit the officer.

Trial counsel answered,

       [T]here was never any evidence that I recall of like a ricochet or
       deflection or something like that and I don’t—I mean, the shot came
       from inside the house, went through a window that had been broken
       out, hit [the officer], essentially in the neck, as I recall, and I don’t—I
       don’t think there was any way to analyze the angle of the shots. . . .
       I can’t imagine that testing could have been done to determine [the
       angle] and there was no question that the bullet came from inside the
       house and Corey Trott was the only person inside the house.

       “Representation by counsel is presumed competent, and a postconviction

applicant has the burden to prove by a preponderance of the evidence that counsel

was ineffective.” Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991). Trott does

not indicate what the expert’s testimony would have offered, and based on trial

counsel’s testimony, it is clear trial counsel did not think expert testimony would

have been beneficial.        Therefore, we find Trott has not shown ineffective



1
  In his pro se brief, Trott makes a contradictory argument and states “[t]here was no need
to use an expert” to prove a lack of intent.
                                         7


assistance of PCR counsel because he has not shown by a preponderance of the

evidence that trial counsel breached an essential duty. See id.

       C. PCR Counsel’s Failure to Assert Trial Counsel and Appellate

          Counsel’s Failure to Raise Right-to-Counsel Issue

       On direct appeal of his conviction, our court declined to address the alleged

violation of right-to-counsel claim because Trott did not preserve the claim and he

did not assert any ineffective-assistance-of-counsel claims that would allow him to

bypass the error preservation requirement. See Trott, 2015 WL 9450670, at *5.

Now, Trott asserts his trial counsel was ineffective for failing to preserve error on

this issue and both his appellate counsel and PCR counsel were ineffective by

failing to raise this ineffective-assistance claim. According to Trott, he was read

his Miranda rights after law enforcement took him into custody. The officer asked

him if he understood his rights, to which he replied, “Yes.” Then the officer asked,

“Having these rights in mind, do you wish to talk to us now?” He replied, “No.” He

argues the reply, “No,” not only invoked his right to remain silent but also invoked

his right to counsel, and he claims the later interrogation by law enforcement was

a violation of such constitutional right. The State argues the incomplete record

does not allow our court to find PCR counsel should have raised this issue, faulting

both trial and appellate counsel.

       “Improvident trial strategy, miscalculated tactics, and mistakes in judgment

do not necessarily amount to ineffective assistance of counsel.”            State v.

McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Thus, “postconviction proceedings

are often necessary to discern the difference between improvident trial strategy

and ineffective assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).
                                            8


This claim should be preserved for a further postconviction proceeding, where

PCR counsel may explain what issues he determined had merit to pursue post-

conviction. See State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer

is entitled to his [or her] day in court, especially when his [or her] professional

reputation is impugned.”); see also Smith, 573 N.W.2d at 22.

V.     Pro Se Claims

       In addition to the brief submitted by counsel in this appeal, Trott submitted

a pro se brief listing numerous claims, some of which were also raised by counsel.

First, Trott asserts his trial counsel was ineffective by failing to strike two juror

members that were related to law enforcement officers. This issue was raised by

appellate PCR counsel, and we have addressed it above. Second, Trott claims

his trial counsel was ineffective for failing to file a notice of self-defense. During

the PCR hearing, trial counsel was asked why he did not choose to file the notice.

He responded, “I don’t think self-defense applies when officers are trying to

execute a warrant . . . . I don’t think there was any legal ability for [trial counsel] to

pursue a self-defense claim.” The PCR court found trial counsel had no duty to

pursue the self-defense claim because it did not have merit. We agree and affirm

that ruling. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel

has no duty to raise an issue that has no merit.”).

       Next, Trott claims his trial counsel was ineffective for failing to depose the

deputy who testified at trial. Trial counsel testified he was able to voir dire the

deputy out of the presence of the jury and then cross-examined him at trial. The

PCR court found Trott could not show prejudice because depositions were
                                               9


permissive and trial counsel was able to voir dire the witness and cross-examine

him. We agree and affirm the PCR court’s finding.2

          Trott next claims he received ineffective appellate counsel on direct appeal

for two reasons: (1) “counsel failed to address any issues other than the

interrogation on direct appeal” and (2) counsel failed to adequately address the

motion to suppress ruling. Regarding the first ineffective-assistance claim, Trott

does not state what issues his appellate counsel should have raised on direct

appeal. Without more on this issue, we must reject this claim as it is too vague for

our consideration. See Dunbar, 515 N.W.2d at 15 (noting “it is not enough to

simply claim that counsel should have done a better job” and requiring the

applicant to “state the specific ways in which counsel’s performance was

inadequate and identify how competent representation probably would have

changed the outcome”). Regarding the second claim, we previously preserved the

claim regarding PCR counsel’s failure to establish a sufficient record for further

postconviction proceedings. At that time, appellate counsel from direct appeal may

also explain his actions.

          Finally, Trott asserts his PCR counsel was ineffective for four reasons: (1)

counsel did not submit a brief following the PCR hearing, (2) counsel did not submit

all relevant evidence for the PCR hearing, (3) counsel failed to petition the PCR

court to admit the interrogation video, and (4) counsel failed to adequately address

all issues listed in the PCR application. Regarding the first claim, Trott fails to

provide any support or show how he was prejudiced. Nevertheless, we preserve



2
    Trott raises several other issues, which we find have no merit and we decline to address.
                                             10

the claim for a further postconviction proceeding. See State v. Harris, 919 N.W.2d

753, 754 (Iowa 2018) (stating our court should preserve an ineffective-assistance

claim, “[i]f the development of the ineffective-assistance claim in the appellate brief

was insufficient to allow its consideration”); see also State v. Johnson, 784 N.W.2d

192, 196–97 (Iowa 2010) (finding when there is an underdeveloped ineffective-

assistance claim, “the court must preserve it for a postconviction-relief proceeding,

regardless of the court’s view of the potential viability of the claim”). Trott’s second

and third claims relate to PCR counsel’s failure to include in the record specific

evidence, relevant documents, and the interrogation video.                   Since we have

preserved the issue of PCR counsel’s failure to establish a sufficient record, these

claims may be addressed at that future proceeding. Trott’s final claim is another

vague assertion that not all issues were addressed without specifying any

unaddressed issue. Therefore, we decline to address this claim as well. See

Dunbar, 515 N.W.2d at 15.

VI.    Conclusion

       We affirm the district court’s denial of the PCR application and preserve

some     of   Trott’s   ineffective-assistance     claims    for   further    postconviction

proceedings.3

       AFFIRMED.



3
 In his reply brief, Trott argues, “At the very least, all of the errors combined in this case
amount to a cumulative effect that has deprived Mr. Trott of a fair trial and a fair post-
conviction hearing.” “[I]f a claimant raises multiple claims of ineffective assistance of
counsel, the cumulative prejudice from those individual claims should be properly
assessed under the prejudice prong . . . . The court should look at the cumulative effect
of the prejudice arising from all the claims.” State v. Clay, 824 N.W.2d 488, 501 (Iowa
2012). Since we did not reach the prejudice prong for any of Trott’s claims, we need not
evaluate the cumulative effect of the prejudice.
