                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0082
                               Filed April 3, 2019


JACOLBY JAPRIEST PENDLETON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.




      Jacolby Pendleton appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Thomas M. McIntee, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.



      Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, Judge.

       A jury found Jacolby Pendleton guilty of second-degree robbery.              The

district court sentenced him to a prison term not exceeding ten years, subject to a

seventy-percent mandatory minimum term. The court of appeals affirmed his

judgment and sentence. State v. Pendleton, No. 13-1647, 2014 WL 6977188, at

*1 (Iowa Ct. App. Dec. 10, 2014).

       Pendleton filed a postconviction-relief application, which was denied

following an evidentiary hearing.       On appeal, Pendleton (1) challenges the

specificity of the postconviction court’s findings of fact, (2) contends his mandatory

minimum sentence constituted cruel and unusual punishment, and (3) argues his

attorneys were ineffective in several respects.

I.     Findings of Fact

       Pendleton argues the postconviction court failed to make specific findings

of fact relating to (1) an alternate juror’s observation of him in shackles and the

juror’s transmission of the information to other jurors; (2) his claim that trial counsel

did not adequately advise him of the terms of a plea offer; and (3) his claim that

trial counsel failed to object to hearsay statements made by a police officer.

       Pendleton is correct that a postconviction court has an obligation to address

“all the issues raised.” Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006). The

postconviction court did so. On the first issue, the court found:

              Trial counsel moved for all appropriate motions including a
       motion for mistrial as a result of a juror seeing the applicant in
       shackles when the trial broke for lunch. The juror was brought before
       the court and the decision was made to release that individual as the
       alternate. Once trial counsel found out that the juror has said
       something to his fellow jurors about what he saw, the person was
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         again brought before the court to testify to what happened in support
         of a motion for new trial.

The postconviction court concluded “curative action was taken” by the district

court.

         On the second issue—the advice Pendleton received about the terms of a

plea     offer—the   postconviction   court   summarized    Pendleton’s    testimony

concerning his discussions with his trial attorney, then determined Pendleton “may

have had some deficits when it came to knowledge of the law, but understanding

the difference between having to serve 7 years before one can be eligible for parole

versus serving a ‘straight’ 10 with good time credit is not a difficult concept to

grasp.” The court further stated, “Trial counsel explained this to him with as much

clarity as possible. He insisted on going to trial to clear his name. Furthermore,

he did not offer credible evidence that his decision was not knowing and voluntary.”

         The final issue—counsel’s claimed failure to object to the officer’s hearsay

testimony about a non-testifying alibi witness—was not raised by Pendleton at the

postconviction-relief hearing. Accordingly, the postconviction court had no reason

to rule on it.

         We conclude the postconviction court made fact findings on the issues

raised.

II.      Cruel and Unusual Punishment – Mandatory Minimum Sentence

         Pendleton argues his mandatory minimum sentence

         constitutes cruel and unusual punishment in violation of the State
         and Federal Constitutions when applied to him as a youth of 19 years
         of age, with no prior adult criminal record, just as the Iowa Supreme
         Court in Lyle abrogated mandatory minimum sentences for all
         individuals younger than 18 prosecuted as adults because the
         mandatory sentence failed to permit the court to consider any
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       circumstances based on his attributes of youth or the circumstances
       of his conduct in mitigation of punishment.

(citing State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014).

       In Lyle, the court held “a mandatory minimum sentencing schema, like the

one contained in Iowa Code section 902.12 (2013), violates article I, section 17 of

the Iowa Constitution when applied in cases involving conduct committed by

youthful offenders.” 854 N.W.2d at 402. But, the court emphasized

       our holding today has no application to sentencing laws affecting
       adult offenders. Lines are drawn in our law by necessity and are
       incorporated into the jurisprudence we have developed to usher the
       Iowa Constitution through time. This case does not move any of the
       lines that currently exist in the sentencing of adult offenders.

Id. at 403.

       Pendleton was an adult offender. Accordingly, Lyle’s holding does not

assist him.

III.   Ineffective Assistance of Counsel

       Pendleton challenges the performance of his attorneys.          To prove an

ineffective-assistance-of-counsel claim, a defendant must show (1) deficient

performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687

(1984).

       Pendleton contends his trial attorney was ineffective in failing to (1) “object

to admission of testimony regarding [a potential alibi witness]’s alleged hearsay

statements”; (2) “object to statements of [the] prosecutor and police officer

regarding identity of subjects on [a] video, which invaded the fact-finding province

of the jury”; and (3) “challenge [the] mandatory minimum 70% [sentence] as being

unconstitutional under the 8th Am[endment to the United States] Constitution and
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Art. I, Section 17 of the Iowa Constitution.” We preserve the first two claims for a

possible second postconviction-relief action. See State v. Harris, 919 N.W.2d 753,

754 (Iowa 2018) (“If the development of the ineffective-assistance claim in the

appellate brief was insufficient to allow its consideration, the court of appeals

should not consider the claim, but it should not outright reject it.”). The third claim

was addressed above. Pendleton’s trial attorney did not have the benefit of Lyle,

which post-dated his representation. We conclude he had no obligation to foresee

the holding and argue the same reasoning should apply to adult offenders. See

State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (“We recognize that an

attorney need not be a ‘crystal gazer’ who can predict future changes in

established rules of law in order to provide effective assistance to a criminal

defendant.”). We conclude Pendleton’s attorney was not ineffective in failing to

raise a Lyle-style challenge to the sentence.

       Pendleton also argues his appellate attorney on direct appeal failed to raise

the following issues: (1) cruel and unusual punishment in imposition of the

mandatory minimum sentence; (2) failure to grant a mistrial for the dismissed juror;

and (3) failure to object “to hearsay testimony of [a potential alibi witness] by” the

police officer.   We addressed the sentencing issue above.          Suffice it to say

appellate counsel was not ineffective in failing to raise a Lyle issue. As for the

remaining two claims, the record is inadequate to address them, and we preserve

them for a possible second postconviction-relief action. Harris, 919 N.W.2d at 754.

       Lastly, Pendleton contends his postconviction trial attorney was ineffective

in failing to (1) challenge his mandatory minimum sentence and (2) interview,

depose, and call several witnesses.           Again, we find the sentencing issue
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unpersuasive for the reasons discussed above. We preserve the remaining claim

for a possible second postconviction-relief action.

       We affirm the denial of Pendleton’s postconviction-relief application.

       AFFIRMED.
