                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1680
                               Filed December 19, 2018


UNDRAY JERMAINE REED,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      A petitioner appeals the dismissal of his application for postconviction relief.

AFFIRMED.




      Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

       Undray Jermaine Reed appeals the district court’s denial of his application

for postconviction relief (PCR). He claims his trial counsel was ineffective by not

objecting to the prosecutor’s questioning on cross-examination of Reed’s prior

criminal convictions of theft, burglary, and a “felony.”

       We review ineffective-assistance-of-counsel claims de novo.          State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In order to succeed on a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty; and (2) prejudice resulted.” Id. The defendant must

prove both prongs by a preponderance of the evidence. Id. at 196.

       We summarized the facts behind Reed’s conviction on direct appeal:

               Facing a possible prison sentence in June 2015, Reed and
       his pit bull, Bossie, moved in with his mother and her fiancé. Reed’s
       mother also owned a dog, a Boston Terrier mix named Chloe.
       Seeing how his mother disciplined Chloe, Reed was worried about
       Bossie’s care: “I’ve raised the dog since she was a puppy, and I
       wanted to leave her in the best possible hands.” When Reed
       confronted his mother about her treatment of Chloe, she told him:
       “Well, you and your dog can get the f**k out.”
               According to Reed's mother, he then threw an electric fan at
       her and punched her in the face. As her fiancé struggled to
       intervene, Reed head-butted his mother. Reed claimed he was
       acting in self-defense after his mother grabbed the front of his shirt.
       Reed also claimed his mother threw a lamp at him. Police responded
       to the scene and arrested Reed. Reed’s mother suffered swelling to
       her head.

State v. Reed, No. 16-0448, 2017 WL 104939, at *1 (Iowa Ct. App. Jan. 11, 2017).

A jury convicted Reed of domestic abuse assault causing bodily injury. See Iowa

Code § 708.2A(3)(b) (2015). We affirmed his conviction, but we preserved issues

related to the admission of his prior convictions for PCR proceedings. See Reed,

2017 WL 104939, at *4.
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         Prior to Reed testifying in his criminal trial, the State sought clarification on

the admissibility of his prior convictions for impeachment. Reed had a conviction

for theft in 2007, three convictions for third-degree burglary in 2009, and a felony

conviction for possession of a controlled substance, third or subsequent offense,

in 2009. Reed’s trial counsel conceded the theft and burglary convictions were

admissible as crimes of dishonesty within the last ten years, and he permitted

admission of the felony conviction as long as the State did not specify the kind of

felony. Accordingly, on cross-examination and for purposes of impeachment, the

State asked Reed if he had been previously convicted of theft, three counts of

third-degree burglary, and a “felony.”

         Regarding the “felony” conviction, Reed’s trial counsel acknowledged for

this proceeding that he should have required the trial court to weigh whether

attempting to impeach Reed’s testimony by mentioning his prior felony was more

prejudicial than probative.1 See Iowa R. Evid. 5.609 (2015). However, his trial

counsel also believed the district court would have admitted the conviction

regardless. With this reflection on the trial testimony, the PCR court found no

breach of duty. We agree.



1
    Iowa Rule of Evidence 5.609 at the time provided in part:
         a. General rule. For the purpose of attacking the credibility of a
         witness:
               (1) Evidence . . . that an accused has been convicted of such
               a crime [punishable by death or imprisonment in excess of
               one year] shall be admitted if the court determines that the
               probative value of admitting this evidence outweighs its
               prejudicial effect to the accused; and
               (2) Evidence that any witness has been convicted of a crime
               shall be admitted if it involved dishonesty or false statement,
               regardless of the punishment.
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       Furthermore, the PCR court found no prejudice resulted from the

introduction of the word “felony” alone. Additionally, Reed on direct examination

acknowledged he “was facing a possible prison sentence” before the altercation

and he wanted to leave his dog “in the best possible hands.” Because Reed

introduced the fact that he was facing prison time, the jury could have put two and

two together so that the prosecutor’s later mention of a felony did not work to

Reed’s prejudice. Therefore, we agree with the PCR court that the use of Reed’s

“felony” for impeachment did not cause prejudice.

       Regarding the theft and burglary convictions, Reed asserts his trial counsel

breached an essential duty by failing to object to the admission of these

convictions. He posits that neither crime involved “dishonesty or a false statement”

under Rule 5.609(a)(2). He reasons, “although Iowa has traditionally treated theft

and burglary as crimes of dishonesty,” there is a split of authority in other

jurisdictions and the federal circuits and our supreme court left open the question

in State v Harrington, 800 N.W.2d 46, 52 n.4 (Iowa 2011). However, as the State

points out, the “open” question in Harrington was only our supreme court’s refusal

to sort out the disparity of interpretations between the various state and federal

courts. See Harrington, 800 N.W.2d at 52 n.4. Nothing in Harrington undermined

controlling Iowa case law, stemming from common law, that burglary and theft are

crimes reflecting adversely on a person’s “honesty and integrity.” See id. at 51–

52 (“It has been settled law in this state that convictions for theft and burglary with

intent to commit theft are crimes of dishonesty.”). Moreover, Harrington left no

question that the mention of such crimes to impeach an accused’s credibility did

not require the court to engage in a balancing test prior to introduction of the
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information. Id. at 51 (overruling State v. Axiotis, 569 N.W.2d 813 (Iowa 1997) and

finding, “Prior convictions that involve dishonesty or false statement are

automatically admissible for impeachment purposes”).

       We therefore conclude the district court properly denied Reed’s application

for postconviction relief.

       AFFIRMED.
