                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1449
                              Filed October 14, 2015

DARNELL G. DEMERY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Darnell Demery appeals the denial of his application for postconviction

relief. AFFIRMED.



       Thomas M. McIntee, Waterloo, for appellant.

       Darnell G. Demery, Fort Madison, appellant pro se.

       Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney

General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant

County Attorney, for appellee.



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

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MILLER, Senior Judge

          Darnell Demery appeals the denial of his application for postconviction

relief (PCR). He contends the district court abused its discretion in denying his

motion to amend his application. He also contends his trial and PCR counsel

were ineffective. In a pro se brief, Demery also challenges part of his sentence

and the court’s subject matter jurisdiction.

I.        BACKGROUND FACTS AND PROCEEDINGS.

          In July 2009, Demery rear ended a vehicle and fled the scene.          Two

drivers followed his vehicle to a restaurant and reported its location to law

enforcement.       When officers responded to the report and arrived at the

restaurant, Demery gave one of the officers his identification.

          As the officers were investigating, Demery told his girlfriend he was “hot,”

which she understood to mean he was in possession of something he wished to

hide. Demery began to walk away, leading to one of the officers pursuing him on

foot. The officer claims, and a witness corroborates, Demery began firing at the

officer, who fired back. The officer saw Demery fall to the ground. Days later,

Demery was apprehended while seeking treatment for a gunshot wound. Blood

found at the scene matched Demery’s DNA profile.

          On the night of the shooting, Demery called two friends and told each he

had been shot. He also informed one that he had been in a “shootout” with

police.

          Demery was charged with and convicted of attempt to commit murder,

possession or dominion and control of a firearm by a felon, assault on a peace
                                         3



officer by use or display of a dangerous weapon, going armed with intent, and

carrying weapons. This court affirmed his convictions on direct appeal. State v.

Demery, No. 10-1158, 2011 WL 3925714, at *1 (Iowa Ct. App. Sept. 8, 2011).

       On January 10, 2012, Demery filed a pro se PCR application alleging his

trial counsel’s representation was ineffective.    Steven Conroy was appointed

Demery’s counsel one week after the action was initiated, but Demery alleges

Conroy never contacted him or performed any work on his case. In March 2013,

Demery filed a pro se request for production of documents, and Conroy failed to

appear at the trial setting conference in April 2013. Also in April 2013, Demery

filed an amended pro se PCR application that added additional claims of

ineffective assistance of trial counsel.     Conroy was removed as Demery’s

attorney in June 2013 after failing to contact court administration as directed in a

court order.

       John Standafer was appointed to represent Demery after Conroy’s

removal. On August 19, 2013, one week before the PCR trial was scheduled to

be held, Standafer filed a motion for leave to amend the PCR application in order

to raise nine new claims. The court denied the motion as well as a motion to

continue because the matter had been on file for more than a year and a half and

the issues “could have and should have been raised at a much earlier time.” At

the close of the PCR trial, the court denied Demery’s PCR application, noting: “I

cannot imagine a stronger case that ever could be put on against anybody than

the case that was put on against Mr. Demery.”
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 II.     MOTION FOR LEAVE TO AMEND AND MOTION TO CONTINUE.

         Demery first challenges the denial of his motion for leave to amend the

PCR application and motion to continue the PCR trial. Generally, we review

PCR proceedings on error.        Ledezma v. State, 626 N.W.2d 134, 141 (Iowa

2001).    However, we review the denial of a request for a continuance or to

amend a pleading for an abuse of discretion. See State v. Atzer, 609 N.W.2d

526, 529 (Iowa 2000) (motion to continue); Tomka v. Hoechst Celanese Corp.,

528 N.W.2d 103, 108 (Iowa 1995) (motion to amend). “An abuse of discretion

occurs when the trial court ‘exercises its discretion on grounds clearly untenable

or to an extent clearly unreasonable.’” State v. Greene, 592 N.W.2d 24, 27 (Iowa

1999) (quoting State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994)).

         Our rules of civil procedure allow a party to amend a pleading by leave of

court or written consent of the adverse party. Iowa R. Civ. P. 1.402(4). Leave to

amend “shall be freely given when justice so requires.” Id. “Amendments should

be allowed as a general rule and denied only in exceptional cases.” Kitzinger v.

Wesley Lumber Co., 419 N.W.2d 739, 741 (Iowa 1987).             The timing of the

request to amend is not the determinative factor; the determinative factor is

whether the amendment substantially changes the issues such that it would

surprise and prejudice the responding party. Id.

         A motion for leave to amend may also be denied if the movant was

negligent in asserting the cause.      Davis v. Ottumwa Young Men’s Christian

Ass’n, 438 N.W.2d 10, 14 (Iowa 1989). If a party was unaware of a claim or

defense, the failure to raise it earlier is not negligent. See id. at 14-15 (holding
                                         5



party was not negligent in failing to raise issue where new legal interpretation

precluded original claim, surprising both parties and effectively denying the

plaintiff any viable theory of recovery).    Nor should a party be denied the

opportunity to amend if the motion is made before the case has been made

ready for trial or trial has been scheduled. See Neylan v. Moser, 400 N.W.2d

538, 543 (Iowa 1987) (holding plaintiffs were not negligent in seven-month delay

in asserting their counterclaim where nothing in the record suggested the case

had even been scheduled for trial when the motion to amend was filed). But

where a party is aware of a claim and waits to move for leave to amend until just

before trial, the court’s denial of the motion is not an abuse of discretion. See

Glenn v. Carlstrom, 556 N.W.2d 800, 804 (Iowa 1996) (affirming denial of motion

brought day before deadline to amend pleadings under scheduling order where

record indicated plaintiff knew of the claims more than a year earlier); see also

Allison-Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 846 (Iowa 1992)

(“[W]hen the movant seeks to amend based upon trial testimony that the movant

knew or should have known about beforehand, amendments that might well have

otherwise been allowed earlier in the course of the proceedings may properly be

denied by the district court judge.”).

       The denial of Demery’s motion to amend was within the court’s discretion.

Standafer filed the motion to amend because he was urged to by Demery—not

because the claims had merit. The motion for leave to amend sought to add nine

new claims of ineffective assistance of counsel and was filed only one week
                                          6



before trial was scheduled to begin. These claims were known to Demery well in

advance of trial and could have been brought earlier.1 We affirm on this issue.

III.   INEFFECTIVE ASSISTANCE OF COUNSEL.

       Demery contends his trial and PCR counsel were ineffective in several

respects. We review claims of ineffective assistance of counsel de novo. State

v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). “To prove ineffective assistance

of counsel, the appellant must show that (1) counsel failed to perform an

essential duty, and (2) prejudice resulted.” State v. Lane, 726 N.W.2d 371, 393

(Iowa 2007).    There is a presumption the attorney acted competently, and

prejudice will not be found unless there is “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).

       Demery argues his trial counsel was ineffective in three respects: in failing

to conduct depositions, in failing to secure a ballistics expert, and in failing to

withdraw due to medical issues. Only one of these issues—trial counsel’s failure

to conduct depositions—was considered by the PCR court. Because the other

two claims of ineffective assistance of trial counsel were not raised before and

passed upon by the PCR court, we will not consider them for the first time on

appeal. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). Although

ineffective assistance of PCR counsel constitutes a sufficient reason for failing to



1
  Although Demery asserts Conroy failed to timely amend the petition, the evidence
shows Demery was able and willing to file pro se pleadings when necessary. His initial
PCR application and a request for production of documents filed months earlier were
submitted pro se. Most importantly, Demery had filed a pro se amended PCR
application in April 2013.
                                        7



raise an issue of trial counsel’s ineffective assistance in the PCR action, see

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-

counsel claims are an exception to the traditional error-preservation rules.”),

Demery does not raise this claim in an ineffective-assistance-of-PCR-counsel

context.2

      With regard to the one claim of ineffective assistance of trial counsel

properly before us, we conclude Demery has failed to show his trial counsel was

ineffective in failing to conduct depositions because he is unable to show how

conducting depositions would have changed the outcome of his trial.           See

Ledezma, 626 N.W.2d at 141 (“If the claim lacks prejudice, it can be decided on

that ground alone without deciding whether the attorney performed deficiently.”).

As the PCR court noted, the evidence of Demery’s guilt “is simply overwhelming.”

See State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996) (holding no prejudice

could result from counsel’s alleged deficient performance as the evidence of

defendant’s guilt was overwhelming).        Demery is unable to articulate how

conducting depositions would have overcome the evidence against him.

      For the same reason, his claims of ineffective assistance of PCR counsel

fail. We need not determine whether Standafer failed to perform an essential

duty by agreeing to the trial date and failing to file the motions to amend and

continue earlier, just as it does not matter that the State concedes Conroy failed

to perform the essential duties of consulting with Demery, investigating possible

defenses, amending his PCR application, and attending court hearings; the


2
  Even assuming Demery is claiming PCR counsel was ineffective in failing to raise
these issues, his claim must fail based on the analysis that follows.
                                         8



overwhelming evidence of Demery’s guilt overshadows any deficient or allegedly

deficient performance by PCR counsel. Concisely stated, no matter how well

PCR counsel had performed their duties, the outcome would not have been

different. Therefore, we affirm on Demery’s claims of ineffective assistance of

trial and PCR counsel.

IV.    ILLEGAL SENTENCE.

       In his pro se brief, Demery alleges he received an illegal sentence

because he was fined as part of his sentence. He notes Iowa Code section

902.9(2) (2009) does not provide a fine for class “B” felonies.

       Although Demery was convicted of a class “B” felony, he was also

convicted of four other crimes, which are punishable by fines. The sentencing

order specifies that Demery was fined $750 on his conviction for possession or

dominion and control of a firearm by a felon, which is a class “D” felony. See

Iowa Code § 724.26.      He was also fined $625 on his conviction of carrying

weapons, which an aggravated misdemeanor. See id. § 724.4(1). Fines may be

assessed on both convictions. See Iowa Code §§ 902.9(1) (providing a class “D”

felon “shall be sentenced to a fine of at least seven hundred fifty dollars but not

more than seven thousand five hundred dollars”), 903.1(2) (providing a person

convicted of an aggravated misdemeanor shall be fined “at least six hundred

twenty-five dollars but not to exceed six thousand two hundred fifty dollars”).

Demery’s sentence is not illegal and is affirmed.
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V.       JURISDICTION.

         Finally, Demery alleges the court lacked subject matter jurisdiction.

Although this claim was not previously raised, a challenge to the court’s subject

matter jurisdiction may be raised at any time. State v. Mandicino, 509 N.W.2d

481, 482 (Iowa 1993). However, Demery’s claim relates to alleged deficiencies

in the trial information. Even assuming the trial information was deficient, it did

not deprive the court of subject matter jurisdiction over Demery’s case but rather

impacted the court’s authority to hear the case. See id. (noting subject matter

jurisdiction refers to the court’s power to “hear and determine cases of the

general class to which the proceedings in question belong,” whereas authority

impacts the court’s ability to hear a particular case it has subject matter

jurisdiction over). A challenge to the court’s authority is waived if not raised in a

timely objection before the trial court. Id. at 483. Because Demery raises this

claim for the first time in this appeal, error is not preserved. We affirm on this

issue.

         AFFIRMED.
