                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0561
                                Filed July 3, 2019


UNDRAY JERMAINE REED,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      The applicant appeals the district court decision denying his application for

postconviction relief. REVERSED AND REMANDED.



      Scott M. Wadding of Kemp & Sease, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee State.



      Considered by Doyle, P.J., May, J., and Gamble, S.J.*

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

       Undray Reed appeals the district court decision denying his application for

postconviction relief. The postconviction-relief court found Reed established a

claim of ineffective assistance of appellate counsel but improperly concluded it did

not have authority to grant Reed relief. We reverse the decision of the district court

and remand for further proceedings.

       I.     Background Facts & Proceedings

       Reed was charged with eluding, possession of methamphetamine, and

driving while license revoked. He stipulated his driver’s license had been revoked

during the relevant time period.

       At Reed’s criminal trial, Officer Albert Bovy of the Waterloo Police

Department testified he observed Reed’s vehicle did not have license plates, so

he turned on his lights and siren and attempted to stop the vehicle. He stated

Reed did not stop, but went forty-five to fifty miles per hour in a twenty-five mile

per hour zone. Officer Bovy followed Reed’s vehicle, which eventually skidded

through an intersection and struck a house. He testified that “when [Reed] crashed

into the house, I could see his driver’s window was open. His arm comes flinging

up as if to throw something.” Officer Bovy stated he found “a baggie of crystal ice,”

a type of methamphetamine, and a pipe used to smoke methamphetamine on the

ground at the scene of the crash. The State presented a videotape recording of

the incident from Officer Bovy’s squad car.

       During closing arguments, defense counsel stated the video showed Officer

Bovy placed something on the ground, which she stated could be the bag of

methamphetamine. Defense counsel asked the jury to find Reed not guilty of
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possession of methamphetamine. On the eluding charge, defense counsel stated,

“You have to decide whether or not you trust Officer Bovy’s testimony about the

speed.”

       In rebuttal, the prosecutor discussed Officer Bovy’s testimony concerning

the defendant’s speed and stated, “He’s telling you the truth.” Concerning the bag

of methamphetamine, the prosecutor stated, “Why—why would a person who’s

gonna risk perjury, your career, do something like that in such a weak way? That’s

called candor. He’s being honest.” Defense counsel objected to this statement,

and the court overruled the objection.

       The jury found Reed guilty of eluding, possession of methamphetamine,

and driving while revoked. Reed stipulated to being a habitual offender. The

district court denied Reed’s motion for a new trial. The court sentenced Reed to a

term of imprisonment not to exceed fifteen years for eluding and fifteen years for

possession of methamphetamine, to be served concurrently, and a fine for driving

while revoked.

       On direct appeal, Reed challenged only his conviction for possession of

methamphetamine. State v. Reed, No. 16-1673, 2017 WL 3525175, at 1* (Iowa

Ct. App. Aug. 16, 2017). We found there had been prosecutorial misconduct

because the prosecutor vouched for Officer Bovy’s credibility during the closing

arguments. Id. at *4. We stated, “When the prosecutor personally vouched for the

officer’s honesty rather than sticking to the evidence presented, Reed was denied

a fair trial.”   Id.    We reversed Reed’s conviction for possession of

methamphetamine and remanded for a new trial on that charge. Id.
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       Reed filed an application for postconviction relief. He claimed he received

ineffective assistance from appellate counsel because no challenge was made on

appeal to his conviction for eluding or driving while revoked. Reed asserted the

prosecutorial misconduct at his criminal trial prejudiced the entire case. In its

ruling, the district court stated:

                The court, however, does find that appellate counsel was
       ineffective for failing to raise the issue of prosecutorial misconduct
       regarding Counts I and III of the Trial Information on appeal. The
       only evidence regarding speed of applicant’s vehicle at the time it
       was fleeing law enforcement are statements either on video tape or
       at trial by the arresting officer. The appellate court determined that
       the prosecutor improperly vouched for the credibility of this officer.
       This conduct resulted in the reversal of applicant’s conviction on
       Count II of the Trial Information [possession of methamphetamine].
       No explanation is given as to why applicant’s conviction for
       methamphetamine as a third offender and habitual offender was the
       only count raised on appeal. Reversal of this count raises a
       reasonable likelihood that the result would have been similar on
       applicant’s conviction for Eluding as a Habitual Offender as charged
       in Count I or Driving while license revoked as charge in count III of
       the Trial Information.

The court went on to state, “The court having determined that appellate counsel

was ineffective in representation of applicant and that applicant was prejudiced by

this inadequate representation, the court is unable to provide relief to the

applicant.” Additionally, “The court therefore determines that despite the finding of

ineffective assistance of appellate counsel, this court is without authority to provide

an appropriate remedy. The matter must therefore be dismissed.” Reed appeals

the court’s dismissal of his postconviction relief action.

       II.     Standard of Review

       In general, we review the district court rulings in postconviction relief

actions, including the dismissal of actions, for the correction of errors at law. Moon
                                          5

v. State, 911 N.W.2d 137, 142 (Iowa 2018).            When a claim implicates a

constitutional issue, such as a claim of ineffective assistance of counsel, our review

is de novo. Id.

       III.    Postconviction Relief

       Reed claims he is entitled to postconviction relief based on his claim he

received ineffective assistance because appellate counsel did not challenge his

convictions for eluding or driving while revoked. A person may be entitled to

postconviction relief where “[t]he conviction or sentence was in violation of the

Constitution of the United States or the Constitution or laws of this state.” Iowa

Code § 822.2(1) (2017). Claims of ineffective assistance “have their ‘basis in the

Sixth Amendment to the United States Constitution.’” State v. Clay, 824 N.W.2d

488, 494 (Iowa 2012) (citation omitted).         An applicant may be entitled to

postconviction relief due to the ineffective assistance of trial or appellate counsel.

See Tyson v. State, No. 16-1158, 2017 WL 4315045, at *3 (Iowa Ct. App. Sept.

27, 2017).

       The State concedes that if Reed received ineffective assistance of counsel,

the district court had authority to grant a new trial. However, the State asserts the

district court erred in its principal conclusion that Reed’s appellate counsel was

ineffective.   The State argues the dismissal of Reed’s postconviction-relief

application should be affirmed because he failed to prove his claim of ineffective

assistance of counsel.

       To establish a claim of ineffective assistance of counsel, an applicant must

prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted to

the extent it denied the applicant a fair trial. State v. Maxwell, 743 N.W.2d 185,
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195 (Iowa 2008).       An applicant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. See

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       We agree with the district court’s conclusion that Reed’s appellate counsel

breached an essential duty in failing to assert prosecutorial misconduct concerning

eluding and driving while revoked. On the issue of prosecutorial misconduct, the

Iowa Supreme Court has stated:

               The initial requirement for a due process claim based on
       prosecutorial misconduct is proof of misconduct. Evidence of the
       prosecutor’s bad faith is not necessary, as a trial can be unfair to the
       defendant even when the prosecutor has acted in good faith.
               The second required element is proof the misconduct resulted
       in prejudice to such an extent that the defendant was denied a fair
       trial. “Thus, it is the prejudice resulting from misconduct, not the
       misconduct itself, that entitles a defendant to a new trial.” In
       determining prejudice the court looks at several factors “within the
       context of the entire trial.” We consider (1) the severity and
       pervasiveness of the misconduct; (2) the significance of the
       misconduct to the central issues in the case; (3) the strength of the
       State’s evidence; (4) the use of cautionary instructions or other
       curative measures; and (5) the extent to which the defense invited
       the misconduct.

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).

       A prosecutor “is precluded from using argument to vouch personally as to

a defendant’s guilt or a witness’s credibility.” Id. at 874 (citation omitted). “An

argument amounts to impermissible vouching if the jury could reasonably believe

the prosecutor was expressing a personal belief in the credibility of a witness,

either through explicit personal assurances or implicit indications that information

not presented to the jury supports the witness.” State v. Martens, 521 N.W.2d 768,

772 (Iowa Ct. App. 1994). We find the evidence shows the prosecutor engaged in

misconduct by vouching for the credibility of Officer Bovy through his statements,
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“He’s telling you the truth,” and, “He’s being honest.” Reed, 2017 WL 3525175, at

*1.

       We also find Reed was prejudiced by the prosecutor’s misconduct. Reed

proved “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Ledezma v. State,

626 N.W.2d 134, 143 (Iowa 2001). The credibility of Officer Bovy was essential to

proving Reed exceeded the posted speed limit by at least twenty-five miles per

hour, which is an element of eluding. See State v. Philo, 697 N.W.2d 481, 485

(Iowa 2005). Also, Officer Bovy testified Reed was driving a vehicle, which is an

element of driving while revoked. See State v. Carmer, 465 N.W.2d 303, 304 (Iowa

Ct. App. 1990).

       Where there has been prosecutorial misconduct that is prejudicial “to such

an extent that the defendant was denied a fair trial,” the proper remedy is to grant

the defendant a new trial. See Graves, 668 N.W.2d at 869. We conclude that if

Reed’s appellate counsel had challenged his convictions of eluding and driving

while revoked on grounds of prosecutorial misconduct, there is a reasonable

probability the convictions would have been reversed and the matter remanded for

a new trial.

       We turn then to the proper relief in Reed’s action for postconviction relief.

Reed claims the district court erred by dismissing his petition for postconviction

relief. He asserts the court had the authority to grant him a new trial under Iowa

Code chapter 822. See Iowa Code § 822.7 (“If the court finds in favor of the

applicant, it shall enter an appropriate order with respect to the conviction or

sentence in the former proceedings, and any supplementary orders as to
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rearraignment, retrial, custody, bail, discharge, correction of sentence, or other

matters that may be necessary and proper.”).

       As noted, the State agrees the court erred in its belief it did not have the

authority to grant Reed a new trial. We determine the district court erred by not

granting the application for postconviction relief, vacating Reed’s convictions for

eluding and driving while revoked, and granting a new trial. SeeTyson, 2017 WL

4315045, at *7 (“We reverse the PCR court’s order denying Tyson’s PCR

application, reverse the judgment of conviction and sentence, and remand for a

new trial” due to the ineffective assistance of trial and appellate counsel.); see also

Harrington v. State, 659 N.W.2d 509, 525 (Iowa 2003) (“Accordingly, we reverse

the trial court’s contrary ruling, and remand this matter for entry of an order

vacating Harrington’s conviction and granting him a new trial.”)

       We reverse the decision of the district court and remand for the entry of a

postconviction order vacating Reed’s convictions and granting him a new trial on

his charges of eluding and driving while revoked.

       REVERSED AND REMANDED.
