                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2021
                              Filed March 23, 2016


EARL JAMARE GRIFFIN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Earl Griffin appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Ronald W. Kepford of Kepford Law Firm, Winterset, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                             2


MAHAN, Senior Judge.

         Earl Griffin appeals the district court’s denial, in part,1 of his application for

postconviction relief (PCR) following his 2009 convictions for robbery in the first

degree and theft in the second degree, in violation of Iowa Code sections 711.1,

711.2, 714.1, and 714.2(2) (2007). Upon our review, we affirm the court’s order

denying Griffin’s PCR application.

I.       Background Facts and Proceedings

         In its ruling affirming Griffin’s convictions on direct appeal, our court set

forth the following facts surrounding the incident leading to Griffin’s arrest:

                 On August 17, 2008, a Kentucky Fried Chicken store was
         robbed after it closed for the night. As employee Jodi Carter was
         walking to her car, she was accosted by a man with a gun. He
         forced her to unlock the restaurant door. After they entered the
         building, the gunman forced the assistant manager, Clinton Hiatt, to
         open the safe. When Hiatt was unsuccessful in opening a second
         safe, the gunman said, “I know that it opens up, you know, I used to
         work here.” Carter and Hiatt were then taken downstairs and
         forced to lie on the floor of the cooler. Carter heard the gunman
         say, “Do not leave this cooler or I will shoot you and kill you.” When
         Hiatt and Carter left the cooler later, they noticed Carter’s car was
         gone. They called the police and the restaurant manager.
                 Police issued photographs taken from the restaurant’s
         surveillance video to the local media. On August 19, police were
         told by Michael Underwood that he recognized his nephew,
         defendant Earl Griffin, in the photographs from the video. Carter
         picked Griffin’s photo out of a police photo array. Hiatt was unable
         to identify the robber from any photos.

State v. Griffin, No. 09-1366, 2011 WL 1136277, at *1 (Iowa Ct. App. Mar. 30,

2011).

         Following this incident, the State filed a trial information charging Griffin

with first-degree robbery and second-degree theft. The State subsequently filed

1
 The postconviction court granted Griffin’s postconviction application in part and vacated
Griffin’s second-degree kidnapping conviction.
                                             3


an amended trial information adding the charge of second-degree kidnapping.

Following a jury trial, Griffin was convicted on all three counts.

       Griffin filed a PCR application. Among other claims, Griffin contended his

trial counsel failed to object to the State’s untimely filing of the amended trial

information, which added the charge of second-degree kidnapping.                   The

amended trial information was filed more than forty-five days after Griffin’s arrest

on the original complaint of kidnapping, and the State failed to show good cause

for going beyond the forty-five-day speedy-indictment deadline. See Iowa R.

Crim. P. 2.33(2)(b). The State conceded the amended trial information violated

Griffin’s right to a speedy indictment.          Following a hearing, the PCR court

concluded Griffin’s trial counsel “breached an essential duty to Griffin by not

objecting to the late amendment, which was clearly prejudicial in light of his

eventual conviction on the kidnapping charge.” The PCR court therefore vacated

Griffin’s kidnapping conviction and “resubmitted [the case] to the trial court for

resentencing consistent with this ruling.”

       The PCR court denied relief on Griffin’s other claims. Griffin appeals.

II.    Scope and Standard of Review

       We review the district court’s ruling on an application for postconviction

relief for correction of errors. See Perez v. State, 816 N.W.2d 354, 356 (Iowa

2012). However, we conduct a de novo review of applications for postconviction

relief raising constitutional infirmities, including claims of ineffective assistance of

counsel. See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
                                         4


III.   Consecutive Sentences

       Griffin contends the PCR court “erred by failing to remand the conviction

to the trial court for resentencing [of] the consecutive sentences imposed” after

the PCR court vacated the kidnapping conviction. The State claims that Griffin

failed to preserve error on this claim. Indeed, this issue was not raised before

the PCR court, and the court did not address it. “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.” Meier v. Senecaut, 641

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

       In any event, the PCR court did remand to the district court for

resentencing after it vacated Griffin’s kidnapping conviction, and presumably, the

court could have ordered concurrent sentences on remand. Nonetheless, the

court had reason to decline to do so where this court, on direct appeal, had

addressed Griffin’s challenge to consecutive sentences and affirmed the

sentencing court’s order of consecutive sentences:

               In the case before us, the district court considered the nature
       and circumstances of the crime.            Griffin brandished a gun,
       threatened Carter and Hiatt with death if they left the cooler, and
       turned against a former employer and a former coworker who had
       tried to befriend and help him. This was more than merely taking
       personal property while holding a gun. The court also considered
       Griffin’s age and criminal history. Although he was only twenty-two,
       Griffin had both a juvenile and adult criminal history. His repeated
       offenses showed he had not taken advantage of the opportunities
       he had to obey the law and had not been rehabilitated by any prior
       sentences. His repeated offenses also demonstrate a greater need
       to protect society from further offenses. The individual sentences
       imposed are all within the statutory limits set by the legislature. The
       district court considered the relevant factors, did not consider
       improper factors, and tailored the sentences to Griffin’s need for
       rehabilitation and the need of the community for protection from
       Griffin. The court provided us with an adequate record for its
                                             5


       sentencing decisions. We find no abuse of discretion in the district
       court’s imposition of consecutive sentences.

Griffin, 2011 WL 1136277, at *6. We conclude this claim,2 even assuming it was

preserved for our review, is not persuasive.

       In reaching this conclusion, we observe Griffin’s claim appears to include

a claim of ineffective assistance of counsel. Specifically, Griffin alleges he was

prejudiced because counsel failed to explain the consequences of not entering a

guilty plea and proceeding to trial. According to Griffin, had he pled guilty, the

court would have dismissed the kidnapping charge and “it is unlikely” the court

would have entered consecutive sentences on all three charges if the kidnapping

charge had been excluded from the trial information.

       To prevail on a claim of ineffective assistance of counsel, Griffin would

have to show that counsel (1) failed to perform an essential duty and (2)

prejudice resulted. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

Even assuming Griffin had alleged counsel breached a duty, which he did not,

counsel would have no duty to raise an issue already disposed of by this court on

direct appeal. State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (“[C]ounsel has

2
  Griffin also states, “These failures and omissions violate [his] equal protection rights
under the 14th Amendment to the United States Constitution and article I, section 6 of
the Iowa Constitution, as well as the separation of powers under article III, section 1 of
the Iowa Constitution.” This contention lacks any factual argument or additional citation
to authority. Specifically, Griffin does not allege who he is similarly situated to such that
he was unequally treated or which branch of government intruded upon the powers of
another. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009) (“[I]f plaintiffs
cannot show as a preliminary matter that they are similarly situated, courts do not further
consider whether their different treatment under a statute is permitted under the equal
protection clause.”); Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255,
260 (Iowa 2002) (“The separation-of-powers doctrine is violated if one branch of
government purports to use powers that are clearly forbidden, or attempts to use powers
granted by the constitution to another branch.” (citation omitted)). We deem Griffin’s
claim waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
an issue may be deemed waiver of that issue.”).
                                             6

no duty to raise an issue that has no merit.”); see also Anfinson v. State, 758

N.W.2d 496, 499 (Iowa 2008) (noting a claim of ineffective assistance of counsel

fails if either element is lacking).

         Moreover, there is no reasonable probability the district court would have

ordered Griffin’s sentences to run concurrently if the kidnapping charge was

dismissed pursuant to a plea agreement3; the nature and circumstances of the

crime were the same, as were Griffin’s age, criminal history, need for

rehabilitation, and the need to protect society from future offenses. See State v.

Braggs, 784 N.W.2d 31, 34 (Iowa 2010) (setting forth the standard to establish

prejudice—a      reasonable     probability that but for his counsel’s alleged

deficiencies, the result of the proceedings would have been different). As noted

by this court, the district court had “considered the relevant factors, did not

consider improper factors, and tailored the sentences to Griffin’s need for

rehabilitation and the need of the community for protection from Griffin.” Griffin,

2011 WL 1136277, at *6; see also Iowa R. Crim. P. 2.23(d). We affirm on this

issue.

IV.      Evidence of Mug Shots

         Griffin contends his trial counsel was ineffective in failing to “object to the

improper introduction of mug shots.”4            The PCR court denied this claim,

concluding it was “dealt with by the court of appeals on direct appeal.” Griffin

acknowledges this general issue was raised on direct appeal and rejected when

this court concluded the district court “did not abuse its discretion in admitting the

3
  Further, there is no reasonable probability Griffin would have taken a plea offer; Griffin
has not alleged such an offer existed.
4
  Griffin raises this issue in a pro se brief.
                                                7

photos.” Griffin, 2011 WL 1136277, at *3. However, Griffin persists his instant

claim is different because it focuses on trial counsel’s failure to object to

introduction of the mug shots “through suggestive testimony.” Upon our review,

we conclude Griffin’s claim fails under both prongs of the ineffective-assistance-

of-counsel analysis.

           Prior to trial, trial counsel filed a motion in limine challenging the State’s

introduction of the photographs at issue. The State responded by claiming the

photos were admissible because Griffin’s identification was an issue, and stating

that the testimony on the photos would focus on the changes in Griffin’s

appearance among them. Trial counsel presented oral argument on the issue at

the hearing on the motion in limine. The district court reserved ruling on the

photo issue until the court saw the photos were edited to remove the background

and neutralize the clothing color so it did not appear to be inmate clothing; at trial,

the court allowed the photographs in exhibits 20 through 24 to be introduced.

The court, however, sustained trial counsel’s objection to the admission of exhibit

17—a photo-array of booking shots of six men from which witnesses identified

Griffin.

           At the PCR hearing, trial counsel acknowledged, “One of the issues in this

case was Mr. Griffin’s changing appearance.” With regard to the strategy he

implemented for Griffin’s defense on this issue, trial counsel explained:

                   One of the issues I was trying to avoid or we were trying to
           avoid was calling too much attention to the solidness of the
           identification of these other witnesses.                Again, it was a
           circumstantial case in the context that these witnesses could not
           identify Mr. Griffin initially, that their identification of Mr. Griffin was
           slow, that there was another alleged defendant that was potentially
           identified or could have been identified by these witnesses. And
                                        8


      part of the argument being that we were hesitant to call too much
      attention to these witnesses’ credibility and have the State use that
      as an effort to establish that they had absolutely no doubt who Mr.
      Griffin was.. . . And there was concern, at least from my part as
      trial counsel, that if we beat that drum too hard, we would only
      reinforce the State’s case as opposed to leave that door open for
      doubt.
              ....
              Again, we used our—at least our first motion in limine
      seeking to strike the use of the mugshots. We were successful in
      some limited fashion. I believe the Court generally ruled those
      mugshots had to be at least modified within the context that Mr.
      Griffin would not have an orange jumpsuit or striped jumpsuit. That
      clearly indicated it was a mugshot, as well as the background of
      mugshots would be deleted or altered for the purpose of not
      showing these were “mugshots.”

      “Representation is presumed competent and a defendant has the burden

to prove by a preponderance of the evidence that counsel was ineffective.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Here, trial counsel was diligent

in pursuing and arguing the photograph issue, and indeed, counsel was

successful in that the photographs were modified so as not to clearly show Griffin

in jail clothing and the photo-array booking shot was excluded. Under these facts

and circumstances, we conclude Griffin has failed to prove counsel failed to

perform an essential duty.

      Moreover, Griffin has not shown a reasonable probability that but for

counsel’s alleged deficiencies, the result of the proceedings would have been

different. See Braggs, 784 N.W.2d at 34. As this court stated:

      [T]he photos had been modified to remove any indication Griffin
      was wearing jail clothing. No mention was made of the source or
      context of the photos. The testimony was just that the photos
      showed how Griffin had changed his appearance during the
      preceding year. See State v. Casady, 597 N.W.2d 801, 807–08
      (Iowa 1999) (allowing mug shot to show defendant’s appearance at
      the time of arrest); see also State v. Redding, 169 N.W.2d 788,
      791–94 (Iowa 1969) (allowing mug shot from prior arrest to
                                       9


       corroborate a witness’s identification of defendant and holding the
       photo did not tend to place defendant’s character in issue).

Griffin, 2011 WL 1136277, at *3.

       We affirm the district court’s denial of        Griffin’s application for

postconviction relief.

       AFFIRMED.
