                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0800
                               Filed July 18, 2018


NATHANIEL YANCEY JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.



      An applicant appeals the denial of his application for post-conviction relief.

AFFIRMED.




      Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       Nathanial Yancey Jr. appeals the denial of his postconviction-relief

application. On appeal, Yancey argues his trial counsel was ineffective, the district

court should have applied a different standard when determining whether he was

prejudiced by his counsel’s ineffectiveness, and his total ninety-year sentence

violates the cruel and unusual punishment clause of the Iowa Constitution.

       I. Background Facts and Proceedings.

       On November 25, 2011, an altercation occurred in the parking lot at Valley

West Mall in Des Moines. Witnesses heard gun shots and saw a person firing a

gun. One witness reported the incident to the West Des Moines Police and later

identified Yancey as the shooter in a photo array. Another witness identified the

shooter by race. Another witness provided the police with a license plate number

from one of the cars involved in the shooting; the car belonged to Yancey. The

police collected three nine-millimeter pistol shell casings from the area the shooting

occurred.

       On December 3, two off-duty police officers were working at Club 101 in

Des Moines, Iowa. One of the officers heard someone yell that Yancey “had a

piece.”   The officer attempted to apprehend Yancey.          Yancey resisted and

attempted to flee. When the officer attempted to use his taser, Yancey turned

around and fired his gun at the officer. Yancey was eventually stopped by another

officer. He no longer had a firearm in his possession, but a nine-millimeter pistol

was found under a truck in an alley Yancey ran through. Three casings from the

same pistol were found at the scene.
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       A criminologist from the Iowa Division of Criminal Investigation (DCI) tested

the casings found at the Valley West shooting, casings from the Club 101 shooting,

and the pistol found at the Club 101 shooting. He determined the gun found at the

Club 101 shooting fired the casings found at both the Club 101 shooting and at the

Valley West shooting.

       Yancey was charged in December 2011 with nine charges stemming from

the two events. He was charged with intimidation with a dangerous weapon in

violation of Iowa Code section 708.6 (2011), assault while participating in a felony

in violation of section 708.3, going armed with intent in violation of section 708.8,

and possession of a firearm by a felon in violation of section 724.26 in connection

with the events of November 25 at Valley West. He was charged with attempt to

commit murder in violation of section 707.11, assault on a peace officer with a

weapon in violation of sections 708.1 and 708.3A, assault while participating in a

felony in violation of section 708.3, going armed with intent in violation of section

708.8, possession of a firearm by a felon in violation of section 724.26, and

intimidation with a dangerous weapon in violation of section 706.8 in connection

with his actions on December 3 at Club 101.

       The court granted Yancey’s motion to sever the trials; the charges

stemming from November 25 at Valley West and December 3 at Club 101 were

tried separately. The State brought the Club 101 shooting to trial first. The jury

found Yancey guilty of assault with intent to inflict serious injury—a lesser included

offense of attempted murder, assault on a police officer with a weapon, assault

while participating in a felony, going armed with intent, possession of a firearm by

a felon, and intimidation with a dangerous weapon. Yancey was sentenced to two
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years for assault with intent to inflict serious injury. Yancey stipulated he was a

habitual offender for assault on a police officer with a weapon, assault while

participating in a felony, going armed with intent, possession of a firearm by a felon,

and intimidation with a dangerous weapon. Yancey was sentenced to fifteen years

for each habitual offender count, to run consecutively for a period not to exceed

seventy-five years.

       Yancey appealed his conviction and sentence for the Club 101 shooting,

arguing he received ineffective assistance of counsel and the district court failed

to give adequate reasoning for his consecutive sentences.           State v. Yancey

(Yancey I), No. 12-1556, 2014 WL 956020 at *1 (Iowa Ct. App. Mar. 12, 2014).

Yancey argued his counsel was ineffective for failing to object to a jury instruction

on going armed with intent. Id. at *2. We found the jury instruction was proper

and his counsel was not ineffective for failing to raise an objection that had no

merit. Id. at *2–3. We also found the trial court gave adequate reasoning for

imposing consecutive sentences.        Id. at *4.   We affirmed the sentence and

conviction. Id. at *5.

       At the Valley West shooting trial, Yancey filed a motion in limine to exclude

evidence from the Club 101 shooting. The district court denied the motion, finding

the evidence was admissible for the purposes of establishing possession of the

firearm and identifying the shooter. Counsel lodged several objections to the Club

101 firearms evidence during the Valley West trial, all overruled. The court gave

the jury limiting instructions on the use of the evidence from the Club 101 case.

The jury convicted Yancey of intimidation with a dangerous weapon, assault while

participating in a felony, going armed with intent, and possession of a firearm by a
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felon. Yancey stipulated to being a habitual offender and was sentenced to fifteen

years on each count to run concurrently with each other but consecutive to

Yancey’s seventy-five-year sentence for the Club 101 shooting.

       Yancey appealed his Valley West conviction and sentence. He argued the

district court erred by allowing in the evidence of the Club 101 shooting, the State

presented insufficient evidence to support his convictions, he was provided

ineffective assistance of counsel, and the district court failed to provide adequate

reasoning for his consecutive sentences. State v. Yancey (Yancey II), No. 12-

1754, 2014 WL 955918, at *1 (Iowa Ct. App. Mar. 12, 2014). We found the trial

court did not err by allowing evidence of Yancey’s prior bad acts to be admitted.

Id. at *4. We found any prejudicial effect was mitigated by instructing the jury of

the limited purpose the evidence of the Club 101 shooting. Id. We also found

there was clear proof that Yancey committed the prior bad acts from the testimony

of the DCI criminalist and the two off-duty police officers. Id. His convictions and

sentence were affirmed. Id. at *8.

       Yancey filed a pro se petition for postconviction relief in January 2015

requesting relief from the convictions for both events. He filed an amended petition

in June, adding a claim that his trial counsel was ineffective for failing to demand

the Valley West trial occur prior to the Club 101 trial. Through counsel, Yancey

filed another amended petition that month, adding a claim that his ninety-year

sentence constituted cruel and unusual punishment.

       A hearing on Yancey’s postconviction claims was held in March 2017. The

district court held Yancey’s trial counsel did not breach a duty in failing to demand

the Valley West shooting be tried first, Yancey was not prejudiced by his counsel’s
                                         6


actions, and his sentence was not cruel and unusual. The court found no evidence

of Yancey’s prior conviction from the Club 101 shooting came in but found the

testimony of the two arresting officers, the identification technician, and the

ballistics expert from the Club 101 trial could have been admitted no matter what

the order of the trials were. Yancey requested the district court consider the

prejudice prong of his ineffective assistance of counsel claim independently under

article 1, section 10 of the Iowa Constitution. The district court declined to do so.

Yancey appeals the denial of his application for post-conviction relief.

       II. Standard of Review.

       Postconviction-relief proceedings are “actions at law and are reviewed on

error.” Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998) (citation omitted).

However, if the postconviction-relief proceeding has constitutional implications,

“we make our own evaluation of the totality of the circumstances in a de novo

review.” Id.

       III. Discussion.

       First, Yancey argues his trial counsel was ineffective. To succeed on his

ineffective assistance of counsel claim, Yancey has the burden to establish that

counsel breached an essential duty and prejudice resulted from the breach. See

Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011). Yancey “must prove both

elements by a preponderance of the evidence.” Ledezma v. State, 626 N.W.2d

134, 142 (Iowa 2001).      “However, both elements do not always need to be

addressed. If the claim lacks prejudice, it can be decided on that ground alone

without deciding whether the attorney performed deficiently.” Id. If either element

is lacking, Yancey’s claim fails. See State v. Straw, 709 N.W.2d 128, 133 (Iowa
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2006). In considering whether trial counsel failed to perform an essential duty,

counsel’s performance is measured “against the standard of a reasonably

competent practitioner with the presumption that they attorney performed his

duties in a competent manner.” Ledezma, 626 N.W.2d at 142. Yancey can

establish prejudice by showing “there is a reasonable probability that, but for the

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

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

       Yancey takes another run at his argument that the Club 101 evidence

should not have been admitted during the trial of the Valley West charges. This

claim was denied on direct appeal under a prior bad acts analysis. A panel of our

court stated:

               At the time of the trial for the charges stemming from the mall
       incident, Yancey had already been tried and convicted for the Club
       101 incident. Furthermore, the trial court mitigated any prejudicial
       effect of the evidence by at least twice instructing the jury verbally of
       the limited purpose for which the testimony was being offered. The
       jury was also provided a written instruction which stated that the
       evidence from the Club 101 incident could “only be used to show the
       identity of the person charged and not for any other purpose.” See
       State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001) (“[W]hen a
       cautionary instruction is given, it is only in extreme cases that the
       instruction is insufficient to nullify the danger of unfair prejudice.”).
               Thus, we conclude the trial court did not abuse its discretion
       by allowing evidence of Yancey’s prior bad acts to be admitted at
       trial.

Yancey II, 2014 WL 955918, at *4. In his application before us now, Yancey frames

this argument as ineffective assistance of counsel. He argues the introduction of

evidence from the Club 101 trial during his Valley West trial was unfairly prejudicial

and that trial counsel should have arranged for the Valley West case to be the first

one tried. He argues if the Valley West case had been tried first, the Club 101
                                          8


evidence would not have been admissible at the Valley West trial. The flaw in his

reasoning is a panel of our court has ruled the evidence admissible under prior

bad act analysis. At the Valley West trial, the off-duty police officers from the Club

101 shooting testified Yancey fired a handgun and a nine-millimeter handgun was

found near him when he was arrested. The ballistics expert testified the shell

casings from the Club 101 shooting matched the shell casings found at Valley

West, and both shell casings came from the handgun found near Yancey.

Evidence of Yancey’s conviction for the Club 101 shooting was not admitted.

Yancey argues his trial counsel did not take all reasonable steps to prevent the

introduction of unfairly prejudicial evidence at trial when she failed to insist the

Valley West case be tried before the Club 101 case.

       At the post-conviction hearing, Yancey’s trial counsel testified she believed

the prosecutor was entitled to determine the order of the trials. The State argues

it had the power to determine the order of the trials. See State v. Anspach, 627

N.W.2d 227, 233 (Iowa 2001) (“[T]he decision to charge an individual is left to the

discretion of the State.”). Yancey has not provided any authority that his trial

counsel was entitled to determine the order of the trials. Yancey’s trial counsel

argued strenuously against the Club 101 evidence and did not breach an essential

duty when she did not request the order of the trials be changed.

       Yancey must also establish prejudice. Ledezma, 626 N.W.2d at 143 (citing

Strickland v. Washington, 466 U.S. 668, 693 (1984)). To sustain this burden,

Yancey must demonstrate that “there is a reasonable probability that, but for

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

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
                                          9

sufficient to undermine confidence in the outcome.” Id. Yancey has not shown the

outcome of the Valley West trial would be different if those charges had been

presented to a jury before the Club 101 charges. Because Yancey has not proven

that his trial counsel breached an essential duty or that prejudice resulted, we

reject his ineffective assistance of counsel claims.

       Next, Yancey argues the district court should have considered the prejudice

prong of the ineffective assistance of counsel analysis under a less deferential

standard pursuant to the article 1, section 10 of the Iowa Constitution. Yancey

argues the postconviction-relief court should have evaluated the prejudice prong

using a harmless error standard. While the Iowa Supreme Court has discussed

diverging from the federal ineffective assistance of counsel framework, Iowa

currently follows the Strickland standard under the Iowa Constitution. See State

v. Halverson, 857 N.W.2d 632, 640 (Iowa 2015) (Mansfield, J., dissenting) (“To

date, we have followed the Strickland standard under both the United States and

the Iowa Constitutions.”). “We are not at liberty to overturn Iowa Supreme Court

precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990); see

also State v. Eichler, 83 N.W.2d 576, 578 (1957) (“If our previous holdings are to

be overruled, we should ordinarily prefer to do it ourselves.”). The district court did

not err by refusing to adopt a new standard in evaluating Yancey’s claims.

       Finally, Yancey argues his ninety-year sentence violates the cruel and

unusual punishment clause of the Iowa Constitution as applied. Article I, section

17 of the Iowa Constitution prohibits cruel and unusual punishment. Punishment

may be cruel and unusual because it inflicts torture, is otherwise barbaric, or is so

excessively severe it is disproportionate to the offense charged.            State v.
                                        10

Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000). “While a sentence to a term of years

might be so lengthy as to violate the Cruel and Unusual Punishment Clause, such

an occurrence outside the context of capital punishment has been ‘exceedingly

rare.’” State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009).

       First, we make a threshold inquiry to determine whether Yancey’s ninety-

year sentence leads to an inference of gross proportionality of Yancey’s crimes.

See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012). “If the sentence does not

create an inference of gross disproportionality, then ‘no further analysis is

necessary.’” Id. (quoting State v. Seering, 701 N.W.2d 655, 670 (Iowa 2005)). To

determine whether Yancey’s sentence is grossly disproportionate, we must

balance “the gravity of the crime against the severity of the sentence.” Id. at 873.

       We consider three general principles when determining whether a sentence

is grossly disproportionate. Oliver, 812 N.W.2d at 650. “The first is that we owe

substantial deference to the penalties the legislature has established for various

crimes.” Id. Generally, a sentence that falls within the parameters of a statutorily

prescribed penalty does not constitute cruel and unusual punishment. Cronkhite,

613 N.W.2d at 669. “The second principle is that it is rare that a sentence will be

so grossly disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review. This is true even though our review is more stringent than

is required under the Federal Constitution.” Oliver, 812 N.W.2d at 650. “The third

principle is that a recidivist offender is more culpable and thus more deserving of

a longer sentence than a first-time offender.” Id.; see also Bruegger, 773 N.W.2d

at 874 (“[T]he Supreme Court has generally supported harsh and severe

sentences for repeat offenders even when the later offense was nonviolent.”).
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       We consider each of Yancey’s sentences individually.           Yancey was

sentenced to a term of imprisonment not to exceed two years for assault with intent

to inflict serious injury. Yancey was sentenced to a term of imprisonment not to

exceed ten years for nine class “C” assaultive felonies: assault on a police officer

with a weapon, two counts of assault while participating in a felony, two counts of

going armed with intent, two counts of possession of a firearm by a felon, and two

counts of intimidation with a dangerous weapon. Yancey’s sentences are within

the penalties the legislature has established. See Iowa Code § 902.9.

       Yancey is a recidivist offender.        Each of his felony sentences were

enhanced to fifteen years because Yancey is a habitual offender. See id. Yancey

was convicted of intimidation with a dangerous weapon, assault while participating

in a felony, and going armed with intent in 2005. In 2007, Yancey was convicted

of intimidation with a dangerous weapon and possession of a firearm by a felon.

In 2008, Yancey was convicted of possession of a firearm by a felon, child

endangerment, harassment, domestic abuse assault, and possession of a

controlled substance with intent to deliver.

       Yancey’s sentences are not grossly disproportionate, and we do not

analyze his cruel and unusual punishment claims further. See Oliver, 812 N.W.2d

at 650.   We find Yancey’s sentences do not violate the cruel and unusual

punishment clause of the Iowa Constitution.

       AFFIRMED.
