                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0966
                               Filed July 16, 2014


MICHAEL EUGENE HORLAS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, David H. Sivright Jr.

(summary judgment) and Paul L. Macek (postconviction ruling), Judges.



      Michael Horlas appeals the district court’s summary dismissal and denial

of the claims raised in his application for postconviction relief. AFFIRMED.




      Thomas J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Jerald Feuerbach, Assistant

County Attorney, for appellee State.




      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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DOYLE, J.

       In 2000, Michael Horlas attacked his father, who later died. Horlas was

charged with first degree murder,1 willful injury, domestic assault with injury, and

obstruction of emergency communication.            The jury found Horlas guilty as

charged. Horlas appealed, challenging the sufficiency of the evidence, and this

court affirmed the judgment and sentence entered by the district court. State v.

Horlas, No. 01-1764, 2002 WL 31757451, at *4 (Iowa Ct. App. Dec. 11, 2002).

       In 2003, Horlas filed an application for postconviction relief. Over a period

of nearly a decade, Horlas was appointed a series of counsel. In 2012, Horlas,

through counsel, filed an amended PCR application. Several of his claims were

rejected by the district court on the State’s summary judgment motion.               The

surviving claims were later extinguished by the court following a PCR hearing.

Horlas’s June 2013 appeal was transferred to this court on May 20, 2014.

       Horlas appeals the district court’s summary dismissal and denial of the

claims raised in his application for postconviction relief. He contends there is a

genuine issue of material fact as to whether he voluntarily and intelligently

waived his right to testify and whether trial counsel was justified in not pursuing a

defense of insanity or intoxication. Horlas further claims his trial counsel was

ineffective in failing to pursue a defense of diminished responsibility or insanity,

and that he is entitled to relief under State v. Heemstra, 721 N.W.2d 549, 558

(Iowa 2006) (holding an act causing willful injury that is the same act that causes



1
   The State amended the trial information after the death of Horlas’s father to add the
first-degree murder charge under alternative theories of premeditation and felony
murder, based on the predicate felony of willful injury or assault causing serious injury.
                                          3


the victim’s death is merged into the murder and therefore cannot serve as the

predicate felony for felony-murder purposes).

       We have carefully reviewed the record and the district court’s summary

judgment and PCR rulings. Upon our de novo review, see Ennenga v. State, 812

N.W.2d 696, 701 (Iowa 2012), we find the court addressed the claims raised by

Horlas and we agree with the court’s findings and conclusions. We observe that

in his deposition, trial counsel Murray Bell discussed at length his trial strategy in

light of the results of Horlas’s psychiatric evaluation, which was completed at

Horlas’s request in preparation of his defense for his underlying criminal trial.2

Specifically, trial counsel stated it was his opinion “there wasn’t anything there for

Mr. Horlas” in terms of a viable defense of diminished responsibility or insanity

because the expert testimony would not support either defense at trial, and he

was concerned about opening the door to the State’s independent evaluation of

Horlas. Trial counsel also discussed Horlas’s rejection of a plea offer to second-

degree murder, which was made by the State based on the possibility Horlas

was intoxicated at the time of the offense, and stated his reasons for deciding not

to pursue an intoxication defense at trial. Even if we were to conclude counsel’s

strategic decisions rose to the level of ineffective assistance (which we do not),

Horlas’s claims in regard to counsel’s performance are conclusory and fall well

short of satisfying his burden to prove he was prejudiced by counsel’s alleged

inaction.   See Ennenga, 812 N.W.2d at 701. (“There is a presumption the

attorney acted competently, and prejudice will not be found unless there is a

2
 Horlas was initially represented by Marsha Arnold. When Horlas’s father died and the
State amended the trial information to include a murder charge, Arnold withdrew, and
Bell was appointed to represent Horlas.
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reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” (internal quotation marks omitted));

State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011) (providing a defendant must

prove both the “essential duty” and “prejudice” elements of an ineffective-

assistance-of-counsel claim by a preponderance of the evidence).

       Finally, we note the Iowa Supreme Court’s ruling in Heemstra is

inapplicable to this case because Horlas’s direct appeal was final prior the

decision in Heemstra. See Langdeaux v. State, No. 10-1625, 2012 WL 1439077,

at *5-6 (Iowa Ct. App. Apr. 25, 2012) (denying various claims concerning the

nonretroactivity of the Heemstra decision and observing the Heemstra court

expressly “limited its decision ‘to the present case and those cases not finally

resolved on direct appeal in which the issue has been raised in the district court’”

(quoting Heemstra, 721 N.W.2d at 558)).

       Any further discussion of the issues raised by our court would add little to

and not change the disposition of this case. Accordingly, we affirm the district

court’s summary judgment and PCR rulings denying Horlas’s application for

postconviction relief. See Iowa Ct. R. 21.26(1)(a), (d).

       AFFIRMED.
