                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1546
                            Filed December 10, 2014


PETER MENDOZA JR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Robert E.

Sosalla, Judge.



      Peter Mendoza Jr. appeals the dismissal of his application for

postconviction relief. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

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

General, Janet M. Lyness, County Attorney, and Susan D. Nehring, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J. and Vogel and Bower, JJ.
                                         2


DANILSON, C.J.

       Peter Mendoza Jr. appeals the dismissal of his application for

postconviction relief (PCR).     Mendoza maintains his appellate counsel was

ineffective for failing to challenge on direct appeal the trial court’s limitation of

Mendoza’s impeachment of the State’s eyewitness. We find the trial court did

not abuse its discretion in limiting the impeachment of the witness, thus appellate

counsel was not ineffective for failing to raise the claim on direct appeal.

Mendoza’s remaining claims were not raised in his application for PCR, and we

decline to review them. See Iowa Code § 822.8 (2011). Accordingly, we affirm

the district court’s denial of Mendoza’s application for PCR.

I. Background Facts and Proceedings

       On June 5, 2009, Mendoza was charged by trial information with arson in

the first degree. He entered a plea of not guilty, and trial was scheduled to begin

on January 4, 2010. Prior to the commencement of trial, Mendoza’s trial attorney

filed a notice of intent to impeach Ward, the State’s alleged eyewitness, pursuant

to Iowa Rule of Evidence 5.609(b).1          Mendoza’s trial attorney requested to

present a full recitation of Ward’s impeachable offenses to the jury—thirteen in

1
 Rule 5.609(a)(2) provides, “Evidence that any witness has been convicted of a crime
shall be admitted if it involved dishonesty or false statement, regardless of the
punishment.” However, rule 5.609(b) limits the admissible convictions, providing:
       Evidence of a conviction under this rule is not admissible if a period of
       more than ten years has elapsed since the date of the conviction or of the
       release of the witness from the confinement imposed for that conviction,
       whichever is the later date, unless the court determines, in the interest of
       justice, that the probative value of the conviction supported by specific
       facts and circumstances substantially outweighs its prejudicial effect.
       However, evidence of a conviction more than ten years old is calculated
       herein, is not admissible unless the proponent gives to the adverse party
       sufficient advance written notice of intent to use such evidence to provide
       the adverse party with a fair opportunity to contest the use of such
       evidence.
                                         3


total—although most of them were more than ten years old. The court held a

pretrial hearing on the matter. Mendoza’s trial attorney maintained all of Ward’s

convictions should be admissible because they showed “a continuing pattern”

that “reflect on [Ward]’s credibility” and Ward’s credibility was “paramount” to the

State’s case.     The State argued there was not “adequate proof of all the

convictions [Mendoza’s trial attorney] itemized” and that the ones there was

adequate proof of did not constitute a “continuous pattern of behavior.” The court

ruled Mendoza could not impeach Ward with the convictions that were more than

ten years old because the probative value did not substantially outweigh the

prejudicial effect, stating:

               [A]nd I’ve considered the issue and balancing factors
       including the impeachment value of prior crimes, the point in time of
       the convictions and David Ward’s subsequent history as made
       known to the court.
               . . . The court considered the importance of David Ward’s
       testimony and the centrality of the credibility issue here.
               The court finds that David Ward’s testimony is very important
       to the [S]tate and his credibility is very important. The court,
       however, is pretty concerned about the weakness of the evidence
       of conviction.
               You know, as the judge here, I would like to know which
       specific crimes that have been listed in the motion truly are
       convictions. I’m not able to know that based on the evidence that
       has been presented here at this hearing, and I also think it is
       significant that many of these convictions are really remote in time,
       not only back ten years but significantly even longer ago and there
       is a noticeable gap in the criminal history from 1995 up to 2009.

The case then proceeded to trial. On the second day, a witness violated the

motion in limine by referencing Mendoza’s prior bad acts, and the district court

granted a mistrial. Mendoza filed a motion to dismiss, which the district court

denied.
                                         4


       Mendoza’s second trial was held on February 8–10, 2010. Prior to the

trial, Mendoza’s counsel asked the court to revisit the notice of intent to impeach

Ward with his prior convictions, maintaining they had obtained a certified copy of

Ward’s criminal record from Illinois that clarified Ward’s criminal history. The

court re-affirmed that Ward could be impeached by two theft convictions that he

received within the last ten years and additionally allowed Mendoza to use a

burglary conviction from January 2000 to impeach Ward. All of Ward’s other

convictions were ruled inadmissible for impeachment.

       The jury trial then commenced. During the State’s closing arguments, the

prosecutor stated:

       The law also tells you you can consider a witness’s interest in the
       trial, their motive, bias, they have a prejudice that might affect may
       not truthfulness even but perception, memory. Now, we had eleven
       witnesses who testified for the [S]tate. We’ll talk in a minute about
       those. There were no defense witnesses and they are not required
       to call absolutely, the burden is on the [S]tate. The reason I
       mention that is only because there were no testimony or exhibits
       that directly refuted or disputed—

Mendoza’s trial counsel then interjected with an objection, which the court

sustained. At the request of Mendoza’s attorney, the court instructed the jury to

disregard the comments made by the prosecutor.              The prosecutor then

proceeded with closing arguments.

       On February 10, 2010, the jury returned a guilty verdict for arson in the

first degree.

       On March 8, 2010, trial counsel filed a motion for new trial asserting the

verdict was contrary to the law and the evidence, the “court abused its discretion

by not allowing the defendant to impeach the State’s eyewitness with evidence of
                                         5


felony convictions more than ten years old,” and the “prosecuting attorney

engaged in prejudicial misconduct during the trial by commenting on the

defendant’s not presenting evidence.”        The State resisted the motion, and

following a hearing, the court denied it.       Mendoza was sentenced to an

indeterminate term of incarceration not to exceed twenty-five years.

       On direct appeal, Mendoza’s appellate counsel argued the district court

abused its discretion when it denied Mendoza’s motion for new trial because the

weight of the evidence did not support a finding Mendoza had the necessary

intent to support a conviction for arson in the first degree. In State v. Mendoza,

No. 10–0645, 2011 WL 662700, at *5 (Iowa Ct. App. Feb. 23, 2011), we affirmed

the district court’s denial of Mendoza’s motion for new trial on the ground raised.

       Mendoza filed a pro se application for PCR on May 4, 2011. With the

assistance of counsel, he filed an amended application on February 6, 2012.

Following an evidentiary hearing, the district court denied Mendoza’s application,

and he appeals.

II. Standard of Review.

       We typically review postconviction-relief proceedings for corrections of

error at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, as

here, when the applicant asserts claims of a constitutional nature, our review is

de novo.    Id.   We give weight to the lower court’s findings concerning the

credibility of witnesses. Id.
                                         6


III. Discussion.

       A. Ineffective Assistance.

       A criminal defendant is entitled to effective assistance of counsel on

appeal as well as at trial. See id. at 141–42. “We judge ineffective assistance of

appellate counsel claims against the same two-pronged test utilized for

ineffective assistance of trial counsel claims.” Id. at 141. To prevail on a claim of

ineffective assistance of appellate counsel, the applicant must prove by a

preponderance of the evidence (1) the attorney failed to perform an essential

duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804 N.W.2d

844, 848 (Iowa 2011). To prove that counsel failed to perform an essential duty,

he must show “counsel’s representation fell below an objective standard of

reasonableness . . . under prevailing professional norms.”       See Strickland v.

Washington, 466 U.S. 668, 688 (1984). The applicant must overcome a strong

presumption of counsel’s competence. Id. at 689. To establish prejudice, the

applicant must show there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694.    In the appellate context, an applicant must establish that the

underlying claim likely would have prevailed if it had been raised on direct

appeal.” See Ledezma, 626 N.W.2d at 141. The claim fails if either element is

lacking. See Everett v. State, 789 N .W.2d 151, 159 (Iowa 2010).

       Mendoza maintains appellate counsel was ineffective for failing to

challenge the district court’s limitation of his impeachment of Ward. To succeed

on his claim, Mendoza must prove that counsel failed to act as a “reasonably

competent practitioner” by not raising the issue on direct appeal, and had
                                          7


counsel raised it, it is likely the appellate court would have found the trial court

abused its discretion in limiting the impeachment.

        Here, it is apparent the district court weighed the probative value,

prejudicial effect, as well as the centrality of Ward’s testimony to the State’s case,

and how remote in time the convictions were. Our supreme court has held “that

when a district court makes explicit on-the-record findings as to probative value,

prejudicial effect, and individual circumstances, the district court often creates a

persuasive record that it properly exercised its discretion.”          See State v.

Redmond, 803 N.W.2d 112, 118 (Iowa 2011). We conclude, after our review of

the explicit findings, the district court did not abuse its discretion in ruling the

convictions more than ten years old were inadmissible to impeach Ward. The

convictions not admitted were remote in time and their bearing on the witness’s

credibility would be negligible because the witness was already impeached by

three prior convictions. Thus, appellate counsel was not ineffective for failing to

raise this issue on direct appeal. See State v. Dudley, 766 N.W.2d 606, 620

(Iowa 2009) (“Because counsel has no duty to raise issues that have no merit,

we will first determine whether [defendant’s] underlying claims have any

validity.”).

        B. Other Claims.     For the first time in his appeal from the denial of

application for PCR, Mendoza maintains appellate counsel was ineffective for

failing to challenge on direct appeal trial counsel’s decision not to request a

mistrial after the prosecutor’s comment that the defense did not call any
                                         8


witnesses at trial.2 Additionally, Mendoza admits in his brief that he is raising for

the first time the issue of whether Ward’s prior convictions should have been

admitted by the trial court, pursuant to Iowa Rule of Evidence 5.405(b), and

whether the trial court record fails to establish that he made a knowing and

intelligent waiver of his right to testify. See Iowa Code § 822.8 (“All grounds for

relief available to an applicant under this chapter must be raised in the

applicant’s original, supplemental or amended application. . . . unless the court

finds a ground for relief asserted which for sufficient reason was not asserted or

was inadequately raised in the original, supplemental, or amended application.”).

Thus, we decline to review these claims.

IV. Conclusion.

       Because we find trial court did not abuse its discretion in limiting the

impeachment of the witness, appellate counsel was not ineffective for failing to

raise the claim on direct appeal. Additionally, Mendoza’s remaining claims were

not raised in his application for PCR, and we decline to review them. We affirm

the district court’s denial of Mendoza’s application for PCR

       AFFIRMED.




2
  In his application for PCR, Mendoza framed the issue as follows:
         During closing arguments, the prosecutor committed prosecutorial
         misconduct by referring to the Defendant’s failure to present evidence on
         his behalf. The burden of proof is on the State of Iowa and the Defendant
         has no obligation to prove his innocence, testify, or present evidence.
         Trial counsel failed to request a mistrial and the District Court abused its
         discretion by failing to grant a mistrial.
In its ruling, the district court treated the claim as a challenge of trial counsel’s
effectiveness.
