                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1586
                            Filed November 13, 2014

WILLIE WILDER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      Applicant appeals the decision of the district court denying his request for

postconviction relief from his conviction for first-degree robbery. AFFIRMED.



      Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, until his

withdrawal, then Ronald E. Langford of Langford Law Office, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., Doyle, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.

       Applicant, Willie Wilder, appeals the decision of the district court denying

his request for postconviction relief from his conviction for first-degree robbery.

Wilder has not shown defense counsel failed to perform an essential duty or that

he was prejudiced by counsel’s performance, and therefore, has not shown

ineffective assistance of counsel. We affirm the decision of the district court

denying Wilder’s application for postconviction relief.

       I.     Background Facts & Proceedings

       On the evening of October 22, 2009, a person who was monitoring

security cameras at a department store in a mall noticed a man take two hats

and put them under his coat. The store’s security guard, off-duty deputy sheriff

Timothy Petersen, was notified the man was leaving the store at the south

entrance with the hats. Petersen went out a different door and came around to

the south entrance, where he saw the man, whom he recognized as “Willie,”

getting into a red Chevy Blazer. Petersen yelled at the man to stop, but he

continued getting into the vehicle.

       Petersen had started to pull out his gun, when the vehicle quickly

accelerated. He testified the vehicle, “pretty much curved right toward where I

was at.” He stated the vehicle could have traveled forward and avoided him

entirely. Petersen jumped back to avoid being hit by the vehicle. He stated, “As I

was jumping back to avoid from being hit, I still had my gun up here and when I

jumped back, the windshield of the vehicle struck the barrel of the handgun.”
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       Petersen went back inside the department store and reviewed the

videotape, concluding the man was Willie Wilder, whom he had met previously.

In a search of Wilder’s home officers found boots that matched the appearance

of the boots worn by the man in the videotape. Additionally, the man in the

videotape was wearing a black jacket with the word, “Yankees,” in white lettering

across the front. Wilder’s wife told officers Wilder had a jacket like that, but she

had not seen it for some period of time. The man in the videotape had short hair

and some facial hair. When Wilder was arrested on October 26, 2009, his head

had been shaved, and he had no facial hair.

       In an amended trial information Wilder was charged with robbery in the

first degree, assault on a peace officer with the intent to commit serious injury

and being an habitual offender, and theft in the third degree. Wilder filed notice

of an alibi defense.

       At the jury trial, the State presented evidence as outlined above.         In

furtherance of Wilder’s alibi defense, defense counsel presented the testimony of

Wilder’s brother-in-law, who stated Wilder came over on the evening of October

22, 2009, to watch football.     The defense also presented the testimony of

Wilder’s mother, who testified Wilder came over that evening to pick up some

letters she wanted him to mail. Additionally, there was testimony from witnesses

about whether Wilder had been bald or had a shaved head prior to October 22,

2009. The defense argued the person in the videotape was not Wilder because

the person in the videotape had short hair and some facial hair, while Wilder had

a bald or shaved head at that time.
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       The jury returned a verdict finding Wilder guilty of robbery in the first

degree and theft in the third degree. These two convictions were merged, and

Wilder was sentenced to twenty-five years in prison. Wilder’s conviction was

affirmed on appeal. State v. Wilder, No. 11-0067, 2012 WL 170690 (Iowa Ct.

App. Jan. 19, 2012).

       Wilder filed an application for postconviction relief, claiming he received

ineffective assistance of counsel at his criminal trial.    He claimed defense

counsel did not pursue a reasonable course of action by presenting an alibi

defense. He asserted defense counsel should have focused on challenging the

allegation of assault on Petersen, an element of the robbery charge. The district

court denied the application for postconviction relief. The court found Wilder

failed to show defense counsel had not performed an essential duty or that there

was a reasonable probability the jury would have reached a different conclusion if

counsel had acted differently. Wilder now appeals the denial of his application

for postconviction relief.

       II.    Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the applicant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
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      III.   Ineffective Assistance

      Wilder claims he received ineffective assistance because defense counsel

pursued a trial strategy that was patently unreasonable. He claims presenting an

alibi defense that was not supported by the evidence was frivolous. He also

contends defense counsel knew the alibi defense was false and claims the

defense was unprofessional.

      At the postconviction hearing, Wilder’s granddaughter, Elvia Van Arsdale,

testified she went with her grandmother, Rose Wilder, to the office of Wilder’s

defense counsel, where they viewed the videotape. She stated she and her

grandmother believed the person in the video was Wilder. Defense counsel

testified that when he observed the videotape he believed the person was Wilder.

He stated, however, Wilder continually denied he was the person shown in the

videotape. Defense counsel stated he presented the alibi defense Wilder wanted

him to present. Defense counsel noted that in order for Wilder to challenge

Petersen’s testimony about what happened outside store, Wilder would have to

admit he was present at that time, and he was unwilling to do so.

      Wilder asserts that instead of pursuing the alibi defense, defense counsel

should have challenged Petersen’s testimony about the alleged assault because

his testimony at the trial was inconsistent with his police report. In the police

report, Petersen stated he went out the east entrance of the department store

and went over to the south entrance, where he saw the suspect he knew as

“Willy” getting into a red Chevy Blazer. In his testimony at the trial Petersen

stated he went out of the west side of the department store and came around to
                                        6



the south entrance. Wilder claims that if defense counsel had focused on these

inconsistent statements, whether Petersen came out of the east entrance or the

west entrance, the jury may have concluded Petersen was not credible.

      Our supreme court has previously stated:

      “[I]neffective assistance is more likely to be established when the
      alleged actions or inactions of counsel are attributed to a lack of
      diligence as opposed to the exercise of judgment.” “Improvident
      trial strategy, miscalculated tactics or mistakes in judgment do not
      necessarily amount to ineffective counsel.” “When counsel makes
      a reasonable tactical decision, this court will not engage in second-
      guessing.” “Selection of the primary theory or theories of defense
      is a tactical matter.”

Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (citations omitted). In

order to overcome a presumption defense counsel was competent, an applicant

must show more than that a trial strategy backfired or that another attorney would

have presented a different defense. Pettes v. State, 418 N.W.2d 53, 56 (Iowa

1988). We consider whether defense counsel has made a reasonable decision.

Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982).

      Contrary to Wilder’s assertions, we find it was not unreasonable for

defense counsel to present an alibi defense.       His brother-in-law and mother

testified Wilder had stopped by their homes on the evening of October 22, 2009,

which would support the argument he had not been at the department store.

Also, several witnesses testified Wilder had a bald or shaved head prior to

October 22, 2009, which made it less likely the person in the videotape, who did

have hair, was him. Wilder’s brother-in-law, Percy Moore, stated Wilder was

bald, “pretty much all the time,” but occasionally he had hair on the top of his

head. Wilder’s mother stated he was bald at that time and had been so for about
                                        7



two or three weeks. Michael Moorehead, who attended the same church as

Wilder, stated that for at least a month before he was arrested Wilder was bald.

Isabella Johnson, who also attended the same church, stated Wilder’s hair was

cut real short or shaved for the last three years. Wilder testified he got his hair

cut on October 16, 2009.

      Defense counsel’s testimony at the postconviction hearing that he

believed the videotape showed Wilder does not make the alibi defense

unreasonable, especially in light of Wilder’s continued denials that he was the

person shown in the videotape. Our supreme court has stated, “It is true that a

lawyer’s task is not to determine guilt or innocence, but only to present evidence

so that others—either court or jury—can do so. A lawyer should not, therefore,

decide what is true and what is not unless there is compelling support for his

conclusion.” State v. Whiteside, 272 N.W.2d 468, 470 (Iowa 1978). The alibi

defense was supported by the testimony of several witnesses, and we conclude

defense counsel acted reasonably in presenting it to the jury.

      Furthermore, we conclude Wilder has not shown he was prejudiced by the

performance of defense counsel. Even if we were to assume defense counsel

should have focused on challenging the testimony of Petersen, rather than

presenting the alibi defense Wilder wanted him to present, Wilder has not shown

defense counsel’s performance had an effect on the judgment. See Lamasters,

821 N.W.2d at 866.      Wilder was required to show there was a reasonable

probability that, but for the unprofessional errors of counsel, the result of the
                                          8



proceeding would of been different.       See id.   A reasonable probability “is a

probability sufficient to undermine confidence in the outcome.” Id.

       On our de novo review, we determine that if defense counsel had

challenged Petersen on the issue of whether he came out of the east entrance of

the department store or the west entrance before seeing Wilder at the south

entrance, it would not have created a reasonable doubt concerning Wilder’s guilt.

The fact remains Petersen identified Wilder as the person on the videotape

taking two hats and the person he saw coming out of the store, who

subsequently drove a vehicle toward him.            We do not believe the slight

inconsistency of whether Petersen came out of the east entrance before he saw

Wilder or whether he came out of the west entrance before he saw Wilder would

lead the jury to have a reasonable doubt respecting Wilder’s guilt.

       We affirm the decision of the district court denying Wilder’s application for

postconviction relief from his conviction for first-degree robbery.

       AFFIRMED.

       Doyle, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, C.J. (specially concurring)

      I write specially to concur in the result but rely solely upon Wilder’s failure

to show he was prejudiced by defense counsel’s performance.
