                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1493
                             Filed September 14, 2016


RONALD JAMES TAYLOR,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Buena Vista County, Carl J.

Petersen, Judge.



      Ronald Taylor appeals from the denial of his application for postconviction

relief seeking to overturn his convictions upon entry of Alford pleas to two counts

of lascivious acts with a child. AFFIRMED.




      Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, P.C.,

Storm Lake, for appellant.

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

Attorney General, for appellee State.




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


DANILSON, Chief Judge.

         Ronald Taylor appeals from the denial of his application for postconviction

relief (PCR) seeking to overturn his convictions upon entry of Alford pleas1 to two

counts of lascivious acts with a child, class “C” felonies, in violation of Iowa Code

sections 708.8(1), and 702.5 (2011). Taylor asserts his trial counsel rendered

ineffective assistance in failing to sufficiently investigate prior to trial, ensure

Taylor’s Alford pleas were knowing and voluntary, and present sufficient

evidence in support of the motion to withdraw the Alford pleas.          Taylor also

asserts appellate counsel was ineffective in failing to challenge the district court’s

denial of posttrial motions on direct appeal. Because we find trial and appellate

counsel did not render ineffective assistance, we affirm.

I. Background Facts and Proceedings.

         On November 7, 2011, Taylor was charged by trial information with four

counts of second-degree sexual abuse, class “B” felonies, based on allegations

he committed sex acts with a minor between June 2010 and March 2011. The

matter proceeded to trial on March 13, 2012. After jury selection but prior to the

start of testimony, the State advised Taylor it intended to file additional charges

involving other known victims if Taylor proceeded to trial, and it offered Taylor an

opportunity to plead guilty. After deliberation with his attorney and wife, Taylor

expressed to the court a desire to enter Alford pleas to counts I and II. The State

agreed to amend counts I and II to the lesser charges of lascivious acts with a

child, dismiss counts III and IV, refrain from filing charges involving other alleged

victims, and dismiss a pending contempt charge. Taylor presented two signed

1
    See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                            3

Alford pleas, the court completed a colloquy, and the pleas were accepted to

counts I and II as amended.

         Taylor filed a motion to withdraw the Alford pleas on April 2, 2012, and a

motion in arrest of judgment on April 9, 2012.            Both motions were denied.

Judgment and sentence were entered on July 30, 2012.               The district court

sentenced Taylor to concurrent terms of incarceration not to exceed ten years on

each count. Taylor’s first appeal raised only the issue of restitution and was

dismissed as premature.         Taylor’s second appeal was dismissed for lack of

jurisdiction on issues not raised in and unrelated to the first appeal.

         Taylor filed the PCR application on April 15, 2013, and an amendment to

the PCR application on March 5, 2015, claiming Taylor was denied effective

assistance by trial and appellate counsel. After a PCR hearing held May 21,

2015, the district court denied Taylor’s PCR application in an August 28, 2015

order. Taylor now appeals.

II. Standard of Review.

         “We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). Applications for postconviction relief

that allege ineffective assistance of counsel, however, raise a constitutional

claim, which we review de novo. Id.

III. Analysis.

         To be successful on his claim for ineffective assistance, Taylor “must

satisfy the Strickland test[2] by showing ‘(1) counsel failed to perform an essential



2
    See Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                          4

duty; and (2) prejudice resulted.’” State v. Clay, 824 N.W.2d 488, 495 (Iowa

2012) (citation omitted).

       A. Failure to Investigate. Taylor asserts trial counsel was ineffective in

failing to obtain a picture of the tattoo on Taylor’s back, Taylor’s dental records,

and testing of Taylor’s truck seat prior to the start of trial. Taylor contends these

pieces of evidence were necessary to contradict the victim’s statements and

prove his innocence.

       Specifically, Taylor contends a picture of the tattoo on his back was

necessary to contradict the victim’s statements that she saw Taylor without a

shirt on during the assault and he did not have a tattoo. Also, Taylor’s argues the

dental records were needed to show that Taylor had dentures at the time of the

assault and could not have had a tooth knocked out by the victim as she stated.

Taylor also claims testing of the truck seat was necessary to show an assault did

not occur in the truck as the victim alleged.

       Trial counsel explained during the PCR hearing that he had not obtained a

picture of Taylor’s tattoo or Taylor’s dental records because he planned to ask

Taylor at trial to remove his shirt to show the tattoo and to take out his dentures.

The PCR court determined:

               Although it is unusual to have a witness take off his shirt or
       take out his dentures during trial, this court cannot say it was an
       unreasonable trial strategy. Had Taylor gone to trial, the defense
       would have needed to cast doubt on the victim’s statements to [the
       department of human services].          It may have been more
       professional to take a picture and obtain the [dental] records, but
       [trial counsel]’s strategy, nonetheless, would have been just as
       effective.
                                             5


       The PCR court also found trial counsel’s failure to complete DNA testing

did not constitute ineffective assistance:

       Taylor also wanted [trial counsel] to have the carpet from the
       bedroom floor and his pick-up truck [seat] analyzed for his DNA. . . .
       [Trial counsel] could have had multiple reasons as to why he did
       not have the carpet tested. First, there was other exonerating
       evidence. . . . Second, [trial counsel] may not have wanted to risk
       having the carpet tested for Taylor’s DNA and having it come back
       positive. It is a risk that a reasonable attorney would have to weigh.

       We agree with the PCR court that trial counsel had strategic reasons for

not pursuing the pretrial investigation now sought by Taylor.       Trial counsel’s

failure to obtain a picture of the tattoo or the dental records did not prejudice

Taylor because trial counsel had an alternative strategy to present the same

facts at trial. Further, it was reasonable for trial counsel to forgo testing of the

truck seat to avoid the potential discovery of incriminating evidence when there

was already exonerating evidence available.          We conclude trial counsel

“conduct[ed] a reasonable investigation or ma[de] reasonable decisions that

ma[de] a particular investigation unnecessary,” Ledezma v. State, 626 N.W.2d

134, 145 (Iowa 2001), and did not render ineffective assistance in that regard.

       B. Failure to Ensure Knowing and Voluntary Pleas. Taylor also contends

trial counsel was ineffective in failing to ensure Taylor knowingly and voluntarily

entered the Alford pleas. Taylor argues he advised trial counsel that he believed

the State’s offer—to refrain from filing additional charges involving other known

victims if he entered the Alford pleas—constituted a threat. Taylor asserts trial

counsel was ineffective in allowing him to enter the Alford pleas that were

induced by a threat and that such pleas were not knowing or voluntary.
                                         6


       However, the prosecutor’s offer to refrain from filing additional charges

was not an improper threat. See State v. Longbine, 263 N.W.2d 527, 528 (Iowa

1978) (“[T]he fact that a plea was induced by the possibility of a more serious

charge does not render the plea involuntary.”); Parrott v. Haugh, 158 N.W.2d

766, 770 (Iowa 1968) (“[A] plea of guilty is not rendered involuntary by the fact it

was partly induced by the possibility a more serious charge might be

prosecuted.”); see also State v. Speed, 573 N.W.2d 594, 597 (Iowa 1998)

(stating “Speed’s concern that he must choose between trial on a murder charge

and pleading guilty to a lesser charge has no bearing upon the voluntariness of

his plea”). Because the offer was not an improper threat, trial counsel did not fail

to perform an essential duty by failing to raise concern regarding the threat

before the court.

       Also, Taylor gave both oral and written affirmation that his pleas were not

entered as a result of improper threats or promises.        During the plea-taking

colloquy, the court asked Taylor, “Have any threats or promise been made by

any law enforcement officer to induce you to enter your pleas of guilty?” Taylor

responded, “No, Your Honor.”      Further, each written Alford plea contained a

section titled advisory of discretion of court, which stated in part, “I acknowledge

that I am entering this Alford plea as my own voluntary and informed act because

of all the reasons indicated on page three, below. I am not entering this plea

because of any threats of severe sentence or additional prosecution or any other

promises or threats.” Taylor signed both written Alford pleas.

       Taylor contends he did not understand the court’s question in the colloquy

to include the prosecutor as a “law enforcement officer” and did not express
                                           7


concern of the threat of additional prosecution to the court because of this

misunderstanding.      However, Taylor was advised by the court to consult his

attorney if he did not understand any of the questions, and Taylor did not indicate

he did not understand the question regarding threats or promises. Taylor also

claims he did not read the written Alford pleas before signing them and was

unaware of their terms. However, at the PCR hearing, trial counsel testified he

extensively reviewed the written pleas with Taylor prior to signing.         We find

Taylor has not overcome the presumption that the Alford pleas were voluntarily

entered. See State v. Bringus, No. 15-0478, 2016 WL 903161, at *2 (Iowa Ct.

App. Mar. 9, 2016) (“The record at a plea hearing presumptively reflects the

facts.    Where a defendant challenges the voluntariness of a plea, but had

asserted the plea was voluntary at the plea hearing, the defendant must

overcome that presumption.” (citations omitted)).        Thus, Taylor has failed to

establish trial counsel failed in an essential duty.

         Additionally, we find no ineffective assistance because Taylor has not

shown prejudice. Taylor may have considered the potential for other charges to

be filed in deciding whether to accept the plea offer, but it was not the sole

consideration. Taylor testified at the PCR hearing that he was not afraid of the

threat of additional prosecution:

                  Q. So why did you enter Alford pleas that day? A. For one I
         was scared because when [trial counsel] was telling me that without
         the evidence that I would not be able to—there’s a good chance I
         would not be able to win the jury; that I would not be able to win the
         trial; that without—without this we won’t be able to go. I didn’t care
         about the threat. That was the last of my worries.
                                         8

Moreover, in exchange for entering the Alford pleas, the State amended counts I

and II to the lesser charges of lascivious acts with a child, dismissed counts III

and IV, dismissed the pending contempt charge, and Taylor received a

significantly shorter prison sentence than what was possible under the four

counts originally charged.

       Taylor has not shown “there is a reasonable probability that, but for

counsel’s errors, he . . . would not have [pled] guilty and would have insisted on

going to trial.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). Thus, Taylor

has not established the requisite prejudice to support the ineffective-assistance-

of-counsel claim.

       C. Failure to Present Sufficient Evidence. Taylor also claims trial counsel

was ineffective in failing to present sufficient evidence in support of the motion to

withdraw the Alford pleas. However, this issue was not ruled on by the PCR

court, and Taylor did not file a motion requesting a ruling on the issue. See Iowa

R. Civ. P. 1.904(2). Therefore, this claim is not preserved for our review. See

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and

decided by the district court before we will decide them on appeal. . . . When a

district court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to preserve error

for appeal.”).

       D. Failure of Appellate Counsel to Challenge Trial Court’s Denial of

Posttrial Motions. Last, Taylor argues appellate counsel was ineffective in failing

to properly raise challenges to the trial court’s denial of the motion to withdraw
                                         9


and motion in arrest of judgment on direct appeal. However, “[t]o prove appellate

counsel’s deficient performance resulted in prejudice, the applicant must show

his [ineffective-assistance-of-trial-counsel] claim would have prevailed if it had

been raised on direct appeal.” Ledezma, 626 N.W.2d at 142. Because we have

determined trial counsel was not ineffective, appellate counsel’s failure to raise

the challenges on direct appeal did not result in prejudice.

       Further, Taylor did not suffer prejudice because the district court did not

abuse its discretion in denying Taylor’s meritless requests to withdraw the Alford

pleas. See State v. Hellickson, 162 N.W.2d 390, 395 (Iowa 1968) (“[T]he rule is

clear that if an accused, with full knowledge of the charge against him, and of his

rights and consequences of a plea of guilty, then enters such a plea, the court

may, absent abuse of discretion, refuse to permit its withdrawal.”).

IV. Conclusion.

       Because we find trial counsel and appellate counsel did not render

ineffective assistance, we affirm.

       AFFIRMED.
