                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0759
                                Filed August 19, 2015


JESS CUEVAS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Hardin County, Steven Oeth,

Judge.



       Jess Cuevas appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



       Douglas Cook, Jewell, for appellant.

       Thomas J. Miller, Attorney General, Jean C. Pettinger and Douglas

Hammerand, Assistant Attorneys General, and Randall J. Tilton, County

Attorney, for appellee State.




       Considered by Vogel, P.J., and Potterfield and Mullins JJ.
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POTTERFIELD, J.

       Jess Cuevas appeals the district court’s denial of his application for

postconviction relief.

       On October 15, 2005, Cuevas’s estranged wife was found dead in her

home. Her skull was fractured, and her neck showed signs of strangulation. On

the same day, special agents Callaway and Turbett visited Cuevas’s rural home,

where he was found with his children.       The agents explained the situation.

Cuevas was very talkative, and the conversation was recorded. After Cuevas

and the agents conversed for a while, the following exchange took place:

              Callaway: Would it be possible—can we just—can we go in
       the police department? It’s getting dark out here and I know it’s
       kind of chilly. Why don’t we go into the police department and we
       can bring the kids and they can come in with us and they can be
       comfortable.
              Cuevas: Do we have to go into the police department?
              Callaway: No, we don’t have to. It would just be a lot simpler
       as far as—that way it’s gonna—I’m not having very good luck with
       cell phone reception and that way I can pass on information and if
       they have more questions that I can ask you that you might be able
       to help with, we can go from there. I’m just—we’re kind of at a loss
       of—you know, I’m tying these two guys up and I know the calls and
       the county are rising as [unintelligible].
              Cuevas: So where would we be going?
              Callaway: Well, we can—you know, I’m not totally familiar
       with this area. But we’d go to probably Norwalk P.D. or we can go
       to the sheriff’s office, you know, whatever’s closest or most
       convenient.
              Cuevas: Is this just to like file a report or what?
              Callaway: To get the information that you have. I mean that
       might be helpful in our investigation in case it does turn out to be,
       you know, of importance.
              Cuevas: All right. All right.
              Callaway: I appreciate your cooperation.
              Cuevas: All right. Do you want me to just follow you in the
       truck or what?
              Callaway: You’re welcome to ride with me if you want. I
       mean you’ve got a lot on your mind and maybe you shouldn’t be
       driving right now.
                                         3


              Turbett: That’d be safest, Jess.
              Cuevas: All right.
              [Unidentified Male]: I can take the girls back into town with
       me.
              Cuevas: Okay. . . . All right. Let me go with you.
              Callaway: That’d be great, Jess.

       The agents took Cuevas to the Warren County courthouse. They found a

room in the courthouse where they could speak. Cuevas continued to answer

the agents’ questions and to offer up his own opinions and observations. At one

point, he began to feel as though the agents were accusing him of wrongdoing

and stated, “I’m not gonna answer any more of your questions.” He nevertheless

continued conversing with the agents. He eventually stated, “I don’t want to be

held here anymore.” The agents began to make arrangements to wrap up the

interview.   Cuevas continued for some additional time to converse with the

agents without objection. The agents gave Cuevas a ride home.

       Cuevas was charged with the murder of his wife about ten months later,

on August 18, 2006. He was convicted, and this court affirmed the judgment and

sentence. See State v. Cuevas, No. 08-1344, 2009 WL 3337606, at *12 (Iowa

Ct. App. Oct. 7, 2009).     He filed an application for postconviction relief on

December 21, 2010. The district court denied the application, and Cuevas now

appeals.

       On appeal, Cuevas argues he received ineffective—i.e. constitutionally

deficient—assistance from his trial counsel. See State v. Vance, 790 N.W.2d

775, 785 (Iowa 2010). We review the issue de novo. See Castro v. State, 795

N.W.2d 789, 792 (Iowa 2011). “To establish his claim of ineffective assistance of

counsel, [Cuevas] must demonstrate (1) his trial counsel failed to perform an
                                              4

essential duty, and (2) this failure resulted in prejudice.” State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668,

687–88 (1984)).       “Failure to prove either element is fatal to an ineffective-

assistance-of-counsel claim.” State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004).

       Cuevas claims his trial counsel failed to perform an essential duty

because counsel did not file a motion to dismiss the charge for lack of speedy

indictment. See Iowa R. Crim. P. 2.33(2)(a) (requiring an indictment be found

within forty-five days of a defendant’s arrest for the commission of the offense);

State v. Wing, 791 N.W.2d 243, 246–51 (Iowa 2010).                    Cuevas asserts his

interview with the agents on October 15, 2005, was an arrest and the trial

information was not filed within forty-five days of that arrest.

       In their October meeting with Cuevas, the agents did not arrest Cuevas

according to the procedures of Iowa Code section 804.14 (2005).1 An arrest may

nevertheless have taken place if “a reasonable person in the defendant’s position

would have believed an arrest occurred.” Wing, 791 N.W.2d at 249. We make a

case-by-case factual determination. Id. at 248. Factors we consider include but

are not limited to “what a suspect is told or not told about his arrest status” and

“whether a person has been handcuffed or booked.” Id. “Mere submission to

authority does not result in an arrest.” Id. (citation and internal quotation marks

omitted). “[T]he question of whether an arrest has occurred does not turn solely




1
  “A person making an arrest must inform the person to be arrested of the intention to
arrest the person, the reason for arrest, and that the person making the arrest is a peace
officer . . . and require the person being arrested to submit to the person’s custody . . . .”
Iowa Code § 804.14(1).
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on whether a reasonable person would have felt free to leave during the

encounter.” Id.

      At no time was Cuevas told he was under arrest, handcuffed, or booked.

He was in fact told his trip to the courthouse was optional. The transcript of the

interview reveals Cuevas was very comfortable speaking to the agents and

volunteered information and opinions without prompting or questioning. When

Cuevas asked to leave, the agents made some arrangements with him as to

what would happen next and soon thereafter gave him a ride home. Cuevas did

not need to repeat his request. The request itself indicates that Cuevas believed

he was free to go.

      Cuevas now suggests that he was not free to go. The record does not

support his claim. First, Cuevas speculates there was “no way” the agents would

have allowed him to remain on his property or go on his way if he had not agreed

to go to the courthouse with them. Nothing in the record supports this assertion,

and Cuevas’s speculation as to what may or may not have occurred if he had

refused to cooperate is not relevant since he did in fact freely cooperate with the

agents. Second, Cuevas asserts “at no time was [he] allowed to leave” and there

was “a guard present at all times.” To the contrary, he was allowed to leave after

he requested to do so. There is no evidence in the record to suggest the agents

or other officers were acting as “guards” to physically prevent Cuevas from

leaving the room.

      Throughout the entire encounter, Cuevas and the agents were cordial with

each other. The transcript of the interview does not reflect hostility between

them, and Cuevas continued to engage in small talk with the agents even during
                                          6


his ride home. Cuevas’s behavior throughout the interview makes it clear that he

did not believe he was under arrest. Neither would an objectively reasonable

person so believe.

       In contrast, Wing demonstrates circumstances that would lead a

reasonable person to believe he was under arrest. Id. at 252. In Wing, officers

discovered marijuana in the defendant’s car.           Id.   The defendant “was

immediately handcuffed, Mirandized, searched again, and placed in the back of

the patrol car.”     Id.   One of the officers “exerted his authority, objectively

evidencing a purpose to arrest.” Id. None of these factors are present in this

case. Cuevas was not handcuffed, Mirandized, or placed in the back of a patrol

car.   The agents did not exert their authority to evince a purpose to arrest

Cuevas.

       Because the October 15, 2005 interview was not an arrest, there was no

speedy-indictment issue with the trial information. Cuevas’s trial counsel was

therefore under no obligation to file a motion to dismiss the charge on that

ground because “[c]ounsel has no duty to raise an issue that has no merit.”

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). Cuevas has not shown

that his counsel failed to perform an essential duty, and his ineffective-assistance

claim fails as a result. We affirm.

       AFFIRMED.
