                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2066
                            Filed November 8, 2017


JOSEPH EDWARD ALBERT OLEA,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Terry Rickers,

Judge.



      An applicant appeals the district court decision denying his request for

postconviction relief from his conviction for child endangerment causing death.

AFFIRMED.




      Edward Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Joseph Olea appeals the district court decision denying his request for

postconviction relief from his conviction for child endangerment causing death, a

class “B” felony with an enhanced sentence, in violation of Iowa Code section

726.6(1)(b), (3), and (4) (2015). Because Olea could not prove either a breach of

duty or any prejudice resulting from either his trial or postconviction counsel’s

performance, we affirm the decision of the district court denying the application

for postconviction relief.

   I. Background Facts and Proceedings

       In February 2014, following a jury trial, Olea was convicted of child

endangerment causing the death of his six-month-old son, K.O. His conviction

was affirmed on appeal. State v. Olea, No. 14–0218, 2015 WL 2406757, at *6

(Iowa Ct. App. May 20, 2015).

       Olea filed an application for postconviction relief (PCR) in 2015 raising

claims of ineffective assistance of trial counsel, and a PCR hearing was held

August 25, 2016. Olea claimed his trial counsel should have objected to the

alleged presence of a thirteenth juror during deliberations and trial counsel

should have offered evidence the child’s treating physicians were liable for failing

to diagnose what he claimed was the cause of death, cerebral venus thrombosis

(CVT). After receiving testimony and exhibits, the PCR court issued its ruling

denying Olea’s claims.       Olea appeals from that ruling and also claims he

received ineffective assistance of postconviction counsel.       He asserts PCR

counsel conceded an issue after the PCR hearing, failed to introduce evidence of
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a possible CVT diagnosis, and failed to file a motion pursuant to Iowa Rule of

Civil Procedure 1.904(2) seeking an additional finding by the PCR court.

   II. Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the applicant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). While our review is de

novo, we give weight to the trial court’s findings on the credibility of witnesses.

Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984).

   III. Trial Counsel

       A. Thirteenth Juror

       Olea asserts he was received ineffective assistance because trial counsel

did not object to the alleged presence of a thirteenth juror during jury

deliberations.

       Iowa Rule of Criminal Procedure 2.18 provides for a jury of twelve jurors.

Once a verdict is read, “[a] party may then require a poll asking each juror if it is

the juror’s verdict.” Iowa R. Crim. P. 2.22(5). During Olea’s trial, counsel agreed

to select fourteen jurors with two designated as alternates. The alternates would

be excused prior to deliberation. The record establishes the two alternate jurors

were excused as the district court judge, Judge Hefner, informed them, “[y]ou are

now free to leave the courthouse but you are not released from the admonition I
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previously gave.” He then stated, “The remaining twelve may now retire to the

jury room.” A short time later, the jury returned their verdict, and Judge Hefner

began polling the jury. According to the court reporter’s transcript, the first name,

Tammy Zink, an alternate, was called, and she answered “Yes.”

       At the PCR hearing, Olea and trial counsel testified they did not recall

specifically how many jurors were in the jury box when polled. However, Judge

Hefner testified there were only twelve jurors in the jury box and he mistakenly

read the name of Zink, the alternate, which had been left on the jury sheet.

Judge Hefner testified either his court reporter or the court attendant quietly

corrected him as to not cause him embarrassment; however, the court reporter

had already recorded the name he read. Likewise, the court reporter testified

she did not notice an additional juror in the jury box. She recalled an off-the-

record discussion at counsel’s table, a correction by the judge, and the polling

then continued.

       The issue comes down to which witnesses’ version of events the PCR

court found more credible. The PCR court found Judge Hefner’s recollection to

be more credible. Moreover, Olea failed to present any evidence that there was

a thirteenth juror actually in the jury room, participating in the deliberations, and

Olea’s trial counsel could not recall whether a thirteenth juror participated in the

deliberations. Judge Hefner very clearly testified, “I’m absolutely confident that

twelve and only twelve jurors deliberated in this case.” Nothing in the record

suggests we should disturb the PCR court’s findings denying Olea’s claim of a

thirteenth juror. Thus, we agree with the PCR court that Olea’s trial counsel did

not breach an essential duty by failing to lodge such an objection during trial.
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         B. Evidence of CVT

         Next, Olea claims he received ineffective assistance because trial counsel

failed to submit evidence of the child’s treating physicians’ failure to diagnose

CVT, which he claims was the cause of his son’s death. Olea asserts his trial

counsel should have offered evidence of prior medical appointments, or reviewed

those medical documents with his defense expert, which may have shown the

presence of CVT.

         At the criminal trial, in order to support his defense theory—that

undiagnosed CVT was the cause of death instead of abusive head trauma—Olea

relied on the expert testimony of Dr. Zhongxue Hua.           After reviewing the

evidence from the criminal trial, the PCR court noted:

                Dr. Hua’s testimony . . . necessarily includes the
         presumption that the CVT went undiagnosed and was present for
         some period of time prior to K.O.’s death. None of the State’s
         witnesses agreed with Dr. Hua. Each of the medical experts or
         treating physicians called by the State testified that K.O. died of
         abusive head trauma and ruled out CVT as a cause of death.

         “Both elements [of an ineffective-assistance claim] 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 preformed deficiently.” Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001). The PCR court concluded, “Mr. Olea

has failed to prove by a preponderance of the evidence that but for his trial

counsel’s decision not to offer evidence that K.O.’s treating physicians failed to

diagnose and treat CVT, the outcome of the trial would have been different.” We

agree.
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      The jury heard testimony from Dr. Hua and several experts for the State.

While Dr. Hua testified K.O.’s autopsy showed signs of CVT damage, none of the

State’s experts agreed with his opinion, and several ruled out the possibility of

CVT due to extensive bruising of K.O.’s head and ribs, which indicated the child

had suffered physical abusive. See Olea, 2015 WL 2406757, at *4. The PCR

court emphasized Olea’s failure to rebut the numerous experts who testified K.O.

died of abusive head trauma.

      Additionally, while trial counsel testified that Dr. Hua would have testified

about CVT not typically manifesting until weeks before the incident, K.O. was not

medically diagnosed with any ailment at his two-month or four-month checkups.

At an appointment one day prior to his death, K.O.’s mother was told “he was

healthy.” At no point has Olea offered any medical records indicating K.O. was

showing the symptoms of CVT. Because there is no evidence indicating K.O.

suffered from CVT and Olea has not provided what additional testimony Dr. Hua

could have provided had the medical records been admitted into evidence, Olea

has not shown there was any failure to diagnose CVT by K.O’s treating

physicians.

      We therefore agree with the PCR court’s findings and conclude Olea has

not shown he received ineffective assistance based on his trial counsel’s failure

to submit additional evidence that medical providers failed to diagnose CVT.

   IV. Postconviction Counsel

      A. Concession after Hearing

      Next, Olea contends he received ineffective assistance because

postconviction counsel, after the PCR hearing concluded, submitted a proposed
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order that conceded Olea had not proven by a preponderance of the evidence

that thirteen jurors deliberated at trial. Olea alleges his counsel’s performance

was so deficient as to cause structural error by denying him counsel at a crucial

stage and failing to place his case against meaningful adversarial testing. See

Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). Structural error occurs:

       (1) [when] counsel is completely denied, actually or constructively,
       at a crucial stage of the proceeding; (2) where counsel does not
       place the prosecution’s case against meaningful adversarial testing;
       or (3) where surrounding circumstances justify a presumption of
       ineffectiveness, such as where counsel has an actual conflict of
       interest in jointly representing multiple defendants.

Id. We conclude Olea was not denied meaningful representation in the PCR

action. Throughout the PCR proceedings, including the evidentiary depositions,

Olea’s PCR counsel was able to examine Judge Hefner, the court reporter,

Olea’s trial counsel, and Olea regarding the thirteenth juror. It became clear that

while Olea and trial counsel could not remember how many jurors were present,

the presiding judge was specifically aware of how many jurors were seated in the

jury box at the time the jury was polled. At the close of the PCR hearing, Olea’s

PCR counsel made a strategic decision to focus on his claims regarding

undiagnosed CVT rather than the thirteenth juror.           See Brewer v. State, 444

N.W.2d 77, 83 (Iowa 1989) (“[W]e will not reverse where counsel has made a

reasonable decision concerning trial tactics and strategy, even if such judgments

ultimately fail.”).   Olea’s PCR counsel abandoned a claim that garnered no

evidentiary support from the PCR testimony.1            See State v. McPhillips, 580


1
 See Iowa R. of Prof’l Conduct 32.3.1. (“A lawyer shall not bring or defend a proceeding,
or assert or controvert an issue therein, unless there is a basis in law and fact for doing
so that is not frivolous . . . .”)
                                       8


N.W.2d 748, 754 (Iowa 1998) (explaining counsel is not incompetent for failing to

pursue an issue that has no merit). Thus, since PCR counsel made a strategic

decision to focus on the seemingly more meritorious CVT claim and concede the

claim that turned out to have no basis in fact, PCR counsel has not breached an

essential duty.

       B. Evidence of CVT at PCR Hearing

       Olea revamps his claim that CVT went undiagnosed by K.O.’s treating

physicians by asserting PCR counsel should have more vigorously pursued the

same claim.

       As set forth above, pertaining to trial counsels’ effectiveness, the PCR

court noted the jury heard testimony from Dr. Hua and several experts for the

State. As each of the experts for the State testified that K.O. died of abusive

head trauma and since Olea did not offer the medical records or evidence K.O.

definitively suffered from CVT, the PCR court ruled Olea failed to prove by a

preponderance of the evidence that the outcome of the trial would be different.

On appeal, Olea does not indicate what PCR counsel could have done differently

to persuade the PCR court that his claim against trial counsel was meritorious.

There is no indication on appeal that there is any evidence regarding an

undiagnosed CVT condition in the medical records, and Olea cannot

demonstrate that he would have had any reasonable chance of success had

such evidence existed and been offered. Accordingly, there is nothing in the

record establishing Olea’s PCR counsel breached an essential duty such that

prejudice resulted.
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       C. 1.904(2) Motion

       Finally, Olea asserts he received ineffective assistance because

postconviction counsel failed to file a posttrial motion under Iowa Rule of Civil

Procedure 1.904(2).2 He contends counsel should have filed a rule 1.904(2)

motion seeking specific findings of fact and conclusions of law regarding his

claim the victim’s mother may have caused the fatal injuries.

       Olea’s application for postconviction relief does not contain a claim

alleging K.O.’s mother inflicted the abusive head trauma or in any way caused

the death of her son. Moreover, Olea’s trial counsel testified their trial strategy

was to focus on the CVT-causation theory by highlighting Dr. Hua’s testimony.

See Brewer, 444 N.W.2d at 83 (“[W]e will not reverse where counsel has made a

reasonable decision concerning trial tactics and strategy, even if such judgments

ultimately fail.”). Neither trial counsel nor Olea testified to the mother’s potential

liability. At the PCR hearing, Olea testified he did not think trial counsel “should

have just gave up” on the theory the mother injured K.O. because “she was the

last one with him.”

       Because Olea did not claim the mother injured K.O. in his application for

postconviction relief, and the evidence at the PCR trial indicated that trial

counsel’s strategy was to focus on Dr. Hua’s opinion regarding CVT, Olea is

unable to show a different outcome would reasonably occur at PCR had PCR




2
  This rule provides: “On motion joined with or filed within the time allowed for a motion
for new trial, the findings and conclusions may be reconsidered, enlarged, or amended
and the judgment or decree modified accordingly or a different judgment or decree
substituted.” Iowa R. Civ. P. 1.904(2).
                                          10


counsel filed a motion under rule 1.904(2) asking the PCR court to rule on this

ineffective-assistance claim.

   V. Conclusion

       Because Olea did not show, at the PCR hearing, thirteen jurors

deliberated or there was evidence of undiagnosed CVT, he failed to prove trial

counsel was ineffective. Also, PCR counsel was not ineffective in submitting its

proposed order, in failing to offer additional medical records, or in failing to file a

rule 1.904(2) motion.

       AFFIRMED.
