                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0429
                               Filed May 1, 2019


SCOTT ALLEN DOORNINK,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Marsha Bergan,

Judge.



      Scott Doornink appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      John W. Pilkington of Nidey Erdahl Fisher Pilkington & Meier, PLC,

Marengo, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Scott Doornink appeals the district court’s denial of his application for

postconviction relief (PCR), contending the court erred in rejecting his claim that

his trial counsel rendered ineffective assistance in failing to move to suppress

evidence concerning alleged improperly induced statements he made to law

enforcement.

I.     Background Facts and Proceedings

       In March 2011, Doornink was fifty years old. At this time, J.R., a fifteen-

year-old girl, was friends with Doornink’s son, who lived with Doornink. On the

evening in question, J.R. visited Doornink’s residence, where his son was hosting

a social gathering. At his son’s request, Doornink went out to buy alcohol for the

gathering. Doornink went on a second alcohol run later in the evening. At some

point, Doornink began speaking to J.R.; he told her he had just been to a strip club

and his wife recently passed away. Doornink told J.R. there was something in the

bedroom he needed to show her about his deceased wife. J.R. went to the

bedroom with Doornink. She then recalled waking up naked. One of J.R.’s friends

came to the residence and, upon looking in the bedroom, observed J.R. and

Doornink lying in the bed, naked. The friend accused Doornink of wrongdoing;

Doornink retorted it was his house and his room and he could do what he wanted

to. J.R. put on some of Doornink’s clothes and the friend took her home. Shortly

thereafter, J.R.’s mother notified law enforcement J.R. had been sexually

assaulted at Doornink’s residence while she was intoxicated. J.R. went to the
                                           3


hospital, and a rape kit was administered. Law enforcement obtained a search

warrant for Doornink’s residence. Officers found J.R.’s clothing in the home.1

       Detective Richardson was one of the officers involved in executing the

search warrant. Doornink agreed to speak with Richardson and, later in the day,

Doornink reported to the sheriff’s department on his own volition, where he was

interviewed by Richardson.2       The interview commenced at roughly 3:52 p.m.

Richardson advised at the outset the interview was just an “informational gathering

thing” and related “you’re not going to get arrested at any time, you’re free to get

up and walk out, just like you walked in. . . . You can stop this at any time.”

Doornink replied, “I’m here because I’ve got nothing to hide.”

       At first, Doornink generally denied any wrong doing.                    Doornink

acknowledged J.R. consumed vodka and was intoxicated but denied knowing

where she obtained the alcohol. Richardson advised Doornink that he already

knew Doornink was not being honest and related if he was not honest his credibility

would “start going down the hill.” Upon questioning about J.R., Doornink stated

she was drinking and got “really flirty,” and when he went to bed she came into his

bedroom. Initially, Doornink reported there was “some clothing removal,” but

“nothing happened.” Doornink clarified his clothes were already off because he

sleeps naked, and J.R. “started taking some of her clothes off” without his

assistance and “got completely naked,” after which “there was a little kissing and

that was it, nothing else happened.” Upon further questioning, Doornink noted he




1
  The foregoing facts are discerned from the trial information and minutes of evidence in
the underlying criminal matter.
2
  A video recording of the interview was admitted as evidence at the PCR trial.
                                              4


“possibly” put his mouth on J.R.’s breast. Richardson advised of the potential for

DNA swabbing of J.R.’s breast and revisited the issue of credibility with Doornink,

noting, “Your truthfulness of this is gonna probably weigh a bit with the county

attorney with what ultimately comes down the pike, so, again, you know you can

say one thing, but evidence is going to point another way. . . . You’re trying to get

this all squared away.” Doornink then conceded he put his mouth on J.R.’s breast.

Richardson then asked if Doornink penetrated J.R.’s vagina with his finger;

Doornink responded, “Probably.” Richardson then advised, “Your honesty and

everything else with this whole episode is going to carry so you might as well just

say what transpired because I already know a lot of things from [the] hospital, so I

am trying to see how honest you’re going to be with me.” Doornink then conceded

he penetrated J.R.’s vagina with his finger, noting it was consensual. Richardson

then went into whether Doornink engaged in genital-to-genital contact with J.R.,

noting “Your truthfulness, again, is going to be a big part of this.” Doornink denied

that circumstance and continued to do so during the remainder of the interview.

The interview concluded at 4:26 p.m., and Doornink was allowed to leave.

       Doornink was arrested roughly two weeks later. He was charged by trial

information with third-degree sexual abuse and supplying alcohol to a minor.3 In

October, Doornink pled guilty to third-degree sexual abuse under an age-

differential theory. See Iowa Code § 709.4(2)(c)(4) (2011).4 The plea agreement



3
   In June, pursuant to a plea agreement, Doornink pled guilty to the alcohol charge and
was sentenced.
4
  The State charged Doornink under three separate theories for third-degree sexual abuse:
the act was done by force or against the will of another, see Iowa Code § 709.4(1); the act
was between persons not cohabiting as husband and wife, the victim was fourteen or
fifteen years old, and the perpetrator was four or more years older, see id. § 709.4(2)(c)(4);
                                              5


did not include a stipulation as to sentencing recommendations.                  The matter

proceeded to immediate sentencing. The State requested the imposition of a term

of incarceration, and Doornink requested a suspended sentence and probation.

The court sentenced Doornink to, among other things, a term of incarceration not

to exceed ten years.

       In October 2013, Doornink filed his PCR application. Following a number

of continuances, a PCR trial was held in December 2017. Doornink generally

argued his counsel rendered ineffective assistance in failing to move for

suppression of his confession to law enforcement on the ground that it was

improperly induced with promises of leniency.

       Doornink’s counsel in the criminal proceedings died before the PCR trial

and was therefore unable to testify. Doornink testified he and his trial attorney

never discussed his interview with Richardson or about potentially filing a motion

to suppress the statements he made therein. He additionally testified he chose to

plead guilty because his counsel advised him he would probably get probation,

although counsel made clear probation instead of a term of imprisonment was not

a guarantee. He testified, looking back, he would have insisted on going to trial if

his statements to Richardson were suppressed. However, he confirmed on cross-

examination that he “had a pretty substantial motivation” to resolve the case in a



or the act was performed while the other person was incapacitated or physically helpless,
see id. § 709.4(4).
        The first and third alternatives amounted to forcible felony violations, while the age-
differential alternative did not. See id. § 702.11(1), (2)(c). Agreeing to plead to the non-
forcible alternative gave Doornink the benefit of being eligible for a deferred judgment or
deferred or suspended sentence. See id. § 907.3. If convicted under a theory that
amounted to a forcible felony, the imposition of a term of imprisonment would have been
statutorily required.
                                          6


way that he not be sentenced to prison, as he had a good job and two children he

did not want to leave on their own, as his wife had recently passed away. Doornink

testified Richardson’s statement that his truthfulness would weigh with the county

attorney influenced his decision to continue to speak with the officer and be more

forthcoming.

       Richardson also testified at the PCR trial. Richardson agreed he never

obtained any DNA evidence in his investigation to suggest sexual contact between

Doornink and J.R. It likewise appears that J.R. never affirmatively stated that she

and Doornink engaged in a sex act. The prosecuting attorney also testified. He

noted he extended a plea offer to Doornink to plead guilty to the non-forcible

variation of third-degree sexual abuse. The prosecutor also explained it is his

common practice in sex-crime cases to condition plea offers on acceptance by the

defendant without any further action that might subject the alleged victim to any

further victimization, such as filing motions to suppress or pursuing depositions.

The prosecutor also testified he commonly tried cases against Doornink’s counsel,

a public defender with extensive experience in criminal law, and he would have

certainly been aware of the conditional terms of the offer. The prosecutor stated

that if the defense had pursued a motion to suppress or depositions, the plea offer

would have been withdrawn. The prosecutor also confirmed his belief that he had

substantial evidence to corroborate Doornink’s confession. The prosecutor also

noted, had Doornink unsuccessfully moved to suppress his confession, he would

have pursued a forcible-felony variation of third-degree sexual abuse at trial, noting

he had “an interested and willing victim, and the facts of the case were there to go
                                           7


forward.”   However, the prosecutor also confirmed the plea offer might have

remained intact had Doornink successfully suppressed his confession

       The district court ultimately denied Doornink’s PCR application. The court

concluded Richardson’s statements did not amount to promises of leniency and

counsel was therefore not ineffective in failing to move to suppress the confession.

The court alternatively noted trial counsel’s apparently tactical decision to forego

pursuing a speculative motion to suppress; it could have jeopardized the pending

plea offer for Doornink to plead guilty to a non-forcible variation of third-degree

sexual abuse, which was the only variation that would have allowed Doornink to

potentially receive a sentence in accordance with his principle wish, staying out of

prison. In light of Doornink’s background—which included honorable service in the

military, a limited criminal history, gainful employment, and model performance

during pre-trial release—the court concluded defense counsel’s decision to forego

filing a risky motion to suppress and pursue a sentence not including prison time

was reasonable, especially because the risks of pursuing the motion to suppress

were great. The court explained: “Doornink’s counsel . . . had a significant reason

not to file a motion to suppress, to wit: loss of the ability to plead to a non-forcible

felony and to request a suspended sentence.” The court concluded:

       [Counsel] did not fail to perform an essential duty in failing to file a
       motion to suppress the admissions that Doornink made to . . .
       Richardson. This was a sound evidentiary decision as well as a
       tactical or strategic decision on the part of [counsel]. It has not been
       shown to have been made as the result of inattention to [counsel’s]
       responsibilities in representing Doornink. In light of all of the
       circumstances, [counsel’s] decision was based on his reasonable
       professional judgment; and his actions do not rise to the level of
       ineffective assistance of counsel.
                                          8


The court also concluded Doornink failed to meet his burden for the prejudice

prong of his claim. Doornink now appeals the denial of his PCR application.

II.    Standard of Review

       Appellate review of PCR proceedings is typically for correction of errors at

law, but where claims of ineffective assistance of counsel are forwarded, our

review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). Because

Doornink’s claim concerns the effectiveness of trial counsel, he must prove by a

preponderance of the evidence that (1) his counsel failed to perform an essential

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

(1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider

either the prejudice prong or breach of duty first, and failure to find either one will

preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State

v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

III.   Analysis

       To establish the first prong of his claim, Doornink must show counsel

“performed below the standard demanded of a reasonably competent attorney.”

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Importantly, “we begin with

the presumption that the attorney performed competently” and “we avoid second-

guessing and hindsight.”     Id.   Also important is the principle that “ineffective

assistance is more likely to be established when the alleged actions or inactions

of counsel are attributed to a lack of diligence as opposed to the exercise of

judgment.” Id. Miscalculated strategies and mistakes in judgment will not typically

support an ineffective-assistance claim. Id. at 143. A failure to register meritless
                                           9

motions does not amount to ineffective assistance of counsel.              See State v.

Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).

      Doornink argues the following statements on the part of Richardson

amounted to improper inducements for his confession to engaging in a sex act with

J.R. and his counsel was therefore under a duty to suppress them:

              Your truthfulness of this is gonna probably weigh a bit with the
      county attorney with what ultimately comes down the pike. . . . You’re
      trying to get this all squared away.
              ....
              Your honesty and everything else with this whole episode is
      going to carry so you might as well just say what transpired because
      I already know a lot of things from [the] hospital, so I am trying to see
      how honest you’re going to be with me.
              ....
              Your truthfulness . . . again, is going to be a big part of this.

First and foremost, the final statement was not made by Richardson until after

Doornink admitted to engaging in a sex act with J.R.; it therefore had no bearing

on his confession.     Under the evidentiary test for promises of leniency, a

confession is inadmissible if influenced by any threat or promise. State v. Madsen,

813 N.W.2d 714, 724 (Iowa 2012). The supreme court has stated:

      An officer can ordinarily tell a suspect that it is better to tell the truth.
      The line between admissibility and exclusion seems to be crossed,
      however, if the officer also tells the suspect what advantage is to be
      gained or is likely from making a confession. Ordinarily the officer’s
      statements then become promises or assurances, rendering the
      suspect’s statements involuntary.

Id. at 727 (quoting State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982)).

      Upon our review, we agree with the State that Richardson did not improperly

“promise any particularized or concrete benefit from cooperation.” In our view, the

only statement that was nearing an improper inducement was that “truthfulness of

this is gonna probably weigh a bit with the county attorney with what ultimately
                                        10


comes down the pike.” Although nearing the line of impropriety, we do not view

this as an impermissible promise or assurance of leniency. Richardson did not

specifically advise Doornink would receive leniency if he was forthcoming with

information. “An offer to inform the county attorney of the defendant’s cooperation,

without any further assurances, is not improper.” State v. Polk, 812 N.W.2d 670,

675 (Iowa 2012). In Polk, an officer told a suspect, “[I]t has been my experience

working cases like this, that if somebody cooperates with us, on down the road the

county attorney is more likely to work with them.” Id. The officer’s statement in

Polk was much closer to the line than Richardson’s statements in this case, and

the supreme court in Polk only concluded the officer crossed the line when

statements of this nature were combined “with suggestions Polk would not see his

kids ‘for a long time’ unless he confessed.” Id. at 676. Here, Richardson simply

stated truthfulness would “probably weigh a bit with the county attorney.”

Richardson omitted any reference to what benefit he would receive or how he

would be helped. We therefore find Richardson’s statements did not cross the line.

See, e.g., State v. Bunker, No. 13-0600, 2014 WL 957432 at *2 (Iowa Ct. App.

Mar. 12, 2014) (concluding “detective did not cross the line because she omitted

any reference to how [defendant] would be helped”); State v. Foy, No. 10-1549,

2011 WL 2695308 at *3 (Iowa Ct. App. July 13, 2011) (finding line not crossed

where investigators did not specify benefit to be received).

       Upon our review, we find the proposed course of action, although a close

call, would have failed and counsel therefore did not breach an essential duty in

not pursuing it.   See Tompkins, 859 N.W.2d at 637.            As such, Doornink’s

ineffective-assistance claim fails. See McNeal, 897 N.W.2d at 703. Alternatively,
                                         11


we wholeheartedly agree with the district court’s conclusion that counsel had a

sound tactical reason to not pursue the motion to suppress that was objectively

reasonable—doing so could have jeopardized Doornink’s ability to plead guilty to

a non-forcible variation of the charged crime and negated the possibility of attaining

Doornink’s principal goal in these proceedings, staying out of prison. Although we

have concluded Richardson’s statements did not cross the line, we fully

acknowledge they came close. The evidence shows counsel was aware that if he

unsuccessfully pursued a motion to suppress, the plea offer would have been

retracted, and the State would have pursued a forcible felony conviction at trial.

We alternatively conclude that counsel’s decision to not roll the dice on a risky

motion to suppress under the unique circumstances of this case was a professional

judgment call that was not objectively unreasonable. Because the decision was

reasonable under the circumstances, we find counsel did not fail to perform an

essential duty. See Tompkins, 859 N.W.2d at 637.

IV.    Conclusion

       Upon our de novo review, we conclude counsel was not ineffective as

alleged. As such, we affirm the denial of Doornink’s PCR application.

       AFFIRMED.
