                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0263
                                Filed March 7, 2018


TYLER L. WHITE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, John G. Linn,

Judge.



       The applicant appeals the district court decision denying his request for

postconviction relief on his convictions for escape and lascivious acts with a child.

AFFIRMED.




       Jacob L. Mason of JL Mason Law, P.L.L.C., Ankeny, for appellant.

       Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.




       Considered by Vogel, P.J., Potterfield, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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GOODHUE, Senior Judge.

       Tyler L. White pled guilty to the charge of lascivious acts with a child, and

on July 18, 2011, sentence was entered. He did not file a motion in arrest of

judgment prior to sentencing, nor did he file an appeal. A second unrelated trial

information was filed on July 16, 2012, charging White with escape from the

Burlington Residential Correctional Facility.        Again he pled guilty and was

sentenced on January 28, 2013. No motion in arrest of judgment was filed, and

no appeal was taken. On October 12, 2013, White filed a postconviction-relief

(PCR) application challenging the escape conviction, and on February 9, 2016, he

fled his second application, challenging the lascivious act conviction.            Both

applications raised ineffective assistance of trial counsel as the sole basis for relief.

The two PCR actions were combined for trial, and the trial court, in an extensive

and well-written ruling, denied relief in both. White appeals. We affirm.

   I. Factual Background and Prior Proceedings

       A. Lascivious Acts with a Child Charge

       White’s PCR application attacking the lascivious-act plea and conviction is

time barred. White admits it is time barred in his brief filed on appeal. PCR

applications must be filed within three years from the date of the conviction or, in

the event of an appeal, from the date the procedendo was issued. Iowa Code

§ 822.3 (2016). The sentence on the lascivious-act conviction was entered on July

18, 2011, and the PCR application challenging the judgment and sentence was

not filed until February 9, 2016. The violation of the three-year statute of limitations

is obvious.    No further consideration will be given to White’s attack on the

lascivious-act plea and conviction.
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       B. Escape

       White was being held in the Burlington Residential Correctional Facility,

sometimes referred to as a halfway house. The record established that furloughs

could be requested and would be granted if the request was determined to be

appropriate. The doors to the outside were not locked, and the residents could

walk away, but it was clear that to do so would be a violation of the facility’s rules.

In a sense, the residents were not confined, but they were placed there by a court

order, and it was well understood by the rules of the facility they were not to leave

without permission. At approximately 11:52 a.m. on July 8, 2012, White left the

facility without permission. His departure was recorded by a video monitor. He

did not voluntarily return, and it was approximately twelve hours before he was

apprehended. His whereabouts were discovered at a location an appreciable

distance from the facility. An attempt was made to apprehend him, but there is

evidence that he ran.

       White maintains his trial counsel was ineffective in the following respects:

(1) failing to advise White of or raise the possibility of the defense of necessity; (2)

failing to raise a claim of diminished capacity; and (3) failing to argue and convince

the prosecutor that the lesser-included charge of absence from custody was the

appropriate charge.

   II. Preservation of Error

       Error has been preserved as to each claim. The State does not dispute

error preservation as to claims (1) and (3) but contends error was not preserved

as to the claim of diminished capacity. White emphasized his condition at the time

of the escape during the PCR trial, but White claimed a “zombie” like condition at
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the time the plea was entered, and the court specifically concluded that the

“transcript of White’s guilty plea demonstrates he was competent and capable

during the plea proceedings.” In general, error is considered preserved when an

issue has been raised and ruled on by the trial court. Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002).

   III. Standard of Review

       Appeals from the denial of a PCR application are ordinarily reviewed for

corrections of law, but a denial of a claim of ineffective assistance of counsel raises

constitutional issues, and as such, the review is de novo. Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012).

   IV. Discussion

       To prevail on a claim of ineffective assistance of counsel, the claimant must

prove by a preponderance of the evidence that (1) counsel failed to perform an

essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001). A claim of ineffective assistance must overcome the presumption

that counsel in competent. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). An

accused is not entitled to a perfect representation but must show that counsel’s

representation fell outside the normal range of competency. State v. Artzer, 609

N.W.2d 526, 531 (Iowa 2000). In reviewing counsel’s effectiveness we do not take

on the role of a Monday-morning quarterback and review the proceedings with “20-

20 hindsight.” Fryer v. State, 325 N.W.2d 400, 414 (Iowa 1982). For relief to be

granted there must be a determination that but for the ineffective assistance of

counsel, there is a reasonable probability the result would have been different.

Ledezma, 626 N.W.2d at 145. Counsel is not ineffective for failing to make a
                                          5

meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). When a

conviction is a result of a guilty plea, a claimant must prove a reasonable probability

that but for counsel’s ineffectiveness the applicant would not have pled guilty but

instead have gone to trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

       A. Defense of a Necessity

       White claims one of the officers at the halfway house threatened to hit him

in the face. The claimed threat was apparently made because White was either

not talking so he could be heard or because he was violating a minor rule of the

facility. White claims to have reported what he considered his mistreatment to his

probation officer, but the probation officer told him he did not have time to talk

about it. The officer that worked for the facility testified that he remembered a

lengthy conversation with the probation officer as to White’s complaints. White

later made an official grievance to the facility but not until the day after he had

escaped and had been apprehended. White testified the threat took place from

one to two weeks before he walked away.

       A limited defense of a necessity is available to a charge of escape. See

State v. Reese, 272 N.W.2d 863, 866 (Iowa 1978). For such a defense to prevail,

under Reese, it is necessary for the accused to have been faced with a specific

threat with the threatened act to occur in the immediate future so that there was

no time for a complaint to authorities or the courts to address the issue. Id.

Further, the claimant must immediately report to the proper authorities when he

has attained a position of safety. Id.

       The threat to White was not a threat of substantial injury nor was it a threat

of an immediate action. The threat happened a week or two before White walked
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away and he made no report of the threat until after he had been apprehended.

Prior to apprehension, he had reached his aunt’s house, where he testified he felt

“real safe,” but he failed to call the authorities. Instead, he ran several miles to his

cousin’s residence, where he was chased by authorities and finally apprehended.

White’s claim would have failed on all three of the requirements mentioned.

Counsel is not ineffective for failing to make a meritless claim. See Brubaker, 805

N.W.2d at 171. Furthermore, there was no evidence that if White had been aware

of the possibility of such a defense, it would have impacted his decision to plead

guilty

         B. Diminished Capacity

         To the extent White is claiming diminished capacity should have been

pursued as a defense to the charge of escape, we note diminished capacity may

be at least a partial defense to a crime that requires specific intent. See State v.

Caldwell, 385 N.W.2d 553, 557 (Iowa 1986). Escape is not a specific intent crime.

State v. Wharff, 134 N.W.2d 922, 924-25 (Iowa 1965). Counsel was well aware of

the possibility of presenting this defense and obtained a medical examination of

White prior to the entry of his plea. Counsel testified the report stated White knew

the charges that had been filed and was capable of presenting his defense in a

rational way. She further testified the report stated White was in touch with reality,

was able to make appropriate decisions, and was aware of the circumstances

when the escape took place.

         In his appellate brief, White contends he was suffering from diminished

capacity at the time the plea was entered. There is very little factual support for

the assertion. White testified he had taken a “whole bunch of Seroquel,” which
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had been prescribed by the medical staff servicing the residential facility. White

also testified his family that was present when the plea was entered had told him

he looked like a “zombie.” During the plea proceeding, White was specifically

asked if the medication he was taking had any effect on what he was doing at the

time the plea was being entered, and he answered without qualification, “No, sir.”

He asserted that he knew what he was doing and had entered the plea voluntarily.

When he was asked what he had done on July 8, 2012, that caused the charges

to be filed he answered, “I left the halfway house without permission.” The court

interrogated him as to why he was at the halfway house and then asked him, “You

further admit that on or about the 8th day of July, 2012, you intentionally left the

Burlington Residential Facility without the consent or authority of your custodian?”

and he answered, “Yes, sir.” The trial court noted that “the transcript of White’s

guilty plea proceeding demonstrates that he was competent and capable during

the plea proceeding.” We agree.

      Counsel had obviously considered the defense of diminished capacity,

obtained a medical evaluation, and determined it would be of no avail. Counsel is

not obligated to pursue a meritless claim. See Brubaker, 805 N.W.2d at 171.

      C. Failure to Argue for the Lesser Charge of Absence from Custody

      White acknowledges absence of custody was not a lesser-included charge

at the time the plea was entered. See State v. Beeson, 569 N.W.2d 107, 112 (Iowa

1997). It was determined to be a lesser-included offense a few years after the plea

had been entered.     See State v. Miller, 841 N.W.2d 583, 595 (Iowa 2014).

However, White argues it was ineffective assistance of counsel to not argue that

absence from custody was the correct charge. White relies primarily on State v.
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Burtlow, 299 N.W.2d 665 (Iowa 1980). In Burtlow, the defendant failed to return

to a work release center after a seven-day furlough. 299 N.W.2d at 667. It was

held that Burtlow could be convicted of absence from custody but not escape. Id.

at 667-69.

      Burtlow is easily distinguished. White was not on work release or on a

furlough as was Burtlow. White had no initial permission to leave the facility. He

had intentionally walked out of a residential facility without permission. White’s

case involved almost the same factual situation as State v. Paarmann, No. 10-

0862, 2013 WL 541631, at *1 (Iowa Ct. App. Feb. 13, 2013). In Paarmann, escape

was held to be the applicable charge. 2013 WL 541631, at *2.

      It appears that White is contending his counsel should have been able to

convince the county attorney to charge the lesser charge of absence from custody

as opposed to escape. This attempt was made by counsel but to no avail. In the

final analysis, a prosecutor has the right to exercise discretion in selecting which

charge to file when the facts support alternative charges, even though the

punishments may vary. State v. Perry, 440 N.W.2d 389, 391-92 (Iowa 1989).



   V. Conclusion

      The trial court’s ruling denying Tyler White’s postconviction relief is in all

respects affirmed.

      AFFIRMED.
