                      IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0839
                                Filed October 10, 2018


COLBY RAY PUCKETT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


         Appeal from the Iowa District Court for Mills County, James M. Richardson,

Judge.



         Colby Puckett appeals the denial of his application for postconviction relief.

AFFIRMED.




         Marti D. Nerenstone, Council Bluffs, for appellant.

         Thomas J. Miller, Attorney General, and Kevin Cmelik, Israel J. Kodiaga,

and Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee

State.




         Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                          2


DANILSON, Chief Judge.

       Colby Puckett appeals the denial of his application for postconviction relief

(PCR). Because Puckett’s plea was knowingly and voluntarily entered and he has

failed meet his burden to show plea counsel was ineffective, the district court did

not err in denying his application.

I. Background Facts and Proceedings.

       Puckett pled guilty to second-degree murder. On appeal, this court rejected

his contention that plea counsel was ineffective in allowing him to plead guilty to a

charge without an adequate basis, noting the record was sufficient to support an

inference of malice aforethought.      State v. Puckett, No. 14-0250, 2015 WL

3884870, at *4 (Iowa Ct. App. June 24, 2015). The supreme court denied further

review on August 27, 2015.

       Puckett then filed a PCR application, claiming plea counsel provided

ineffective assistance and he did not enter a voluntary and intelligent guilty plea.

At the PCR trial, Puckett continued to challenge his plea of guilty, arguing he did

not have “malice aforethought.” Puckett testified,

               I mean, now I know a lot more than what I did upon being able
       to research here in prison, but during the time I didn’t know or
       understand all the facts surrounding the second-degree murder plea
       or the first-degree murder for that matter. I felt like I was doing the
       right thing at the time, you know, doing what my—I was supposed to
       listen to my attorney; you know, he was supposed to guide me in the
       right way. Had I known then what I know now, I don’t think I would
       have accepted the plea.
               Q. And what did you discover that changed your mind? A.
       The malice aforethought issue, just the fact that in order for a second-
       degree conviction to stand there has to be proof of intent, which is
       malice aforethought. I told my attorney numerous times that I never
       intended to hurt her. He met with the judge and came out and told
       me that that’s what I had to say, which is why I said it.
               ....
                                           3


                Q. Bottom line for malice aforethought, though, the judge told
       you during the hearing that it meant that—even if you did not intend
       to kill the child, you did intend to cause some harm to the child, is
       that right? A. Correct.
                ....
                Q. Do you recall the acts themselves? A. Yes.
                Q. What would any person believe would happen to the child
       given what you did to her? A. It would probably be hurt somehow.
                ....
                Q. But do you understand that there’s a difference between
       wishing you hadn’t done it and knowing that what you’re doing could
       seriously injure a child? A. Do I understand that?
                Q. Yeah. A. Yes.
                Q. And when you were in the act of shaking a child, you knew
       that it could seriously injure that child? A. Correct.
                Q. Did you ever tell Mr. Murphy, I’m not taking that plea, I
       want my trial? A. No.

       Additional testimony and exhibits were admitted at trial. Puckett’s motion

to amend his PCR was granted.1 Before the end of the trial, the PCR court directly

addressed Puckett at the trial, stating:

             THE COURT: Okay. So we’re talking about (1) your trial
       counsel, Mr. [Michael] Murphy, had some sort of discussion that
       your—in chambers; (2) that Mr. Murphy did not challenge your
       competency at the time of the plea taking; and (3) that Murphy did



1
  The motion to amend asserted “depositions have clarified the issues” of ineffective
assistance of plea counsel, stating Murphy was ineffective:
               (a) By failing to have the applicant receive a mental health
       evaluation or obtain medical records pertaining to his mental capacity;
               (b) By failing to explain to the applicant all of the legal issues
       pertaining to Count I of the Trial Information;
               (c) By allowing the defendant to participate in a plea without
       assuring that he was doing so knowingly, voluntarily and intelligently;
               (d) By inadequately explaining to the applicant the lesser included
       crimes of the charges set out in the Trial Information;
               (e) By putting undue pressure on the applicant by telling him that
       he (Murphy) had a reputation to keep and that’s why trial should be
       avoided;
               (f) By not properly preparing for trial; and
               (g) By failing to file a motion to suppress the defendant’s video
       taped statement that occurred on or about February 2, 2013 wherein the
       defendant not only admitted to shaking the baby but demonstrated it on
       camera.
                                         4


       not adequately investigate your case. Am I correct that those three
       areas are what we’re here today about?
             [PUCKETT]: Yes, Your Honor.

       In its written ruling, the PCR court outlined the issues presented:

               The criminal element of “malice aforethought” contained in
       2nd degree murder is the primary basis of Puckett’s claim of
       ineffective assistance of trial counsel. That issue has been
       addressed by the Iowa Court of Appeals and will not be further
       addressed by this Court. As set forth above, Puckett alleges that his
       trial counsel Murphy was ineffective in three areas. First, Puckett
       alleges Murphy failed to challenge his competency because of his
       [attention deficit and hyperactivity disorder (ADHD)] and bipolar
       disorder. Puckett also alleges that Murphy was ineffective in failing
       to adequately investigate. This second issue is primarily based on
       the fact that Murphy did not formally file pleadings to suppress
       Puckett’s voluntary interview with [department of criminal
       investigation] agent Myers. Lastly, Puckett urges that a conflict of
       interest existed because of an in-chamber communication between
       Murphy and Judge Heckerman.

The PCR court found Puckett’s plea was made knowingly and voluntarily and his

plea counsel was not ineffective. Puckett now appeals.

II. Scope and Standard of Review.

       Generally, we review the court’s denial of a PCR application for correction

of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). “However,

when the applicant asserts claims of a constitutional nature, our review is de novo.

Thus, we review claims of ineffective assistance of counsel de novo.” Id. (citation

omitted).

III. Discussion.

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

satisfy the Strickland [v. Washington, 466 U.S. 668, 687 (1984),] test by showing

‘(1) counsel failed to perform an essential duty; and (2) prejudice resulted.’” State

v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citation omitted). The claimant must
                                             5


make a showing of both elements to establish ineffective assistance of counsel.

Id. A claim of ineffective assistance of counsel arising from a failure to file a pretrial

motion to suppress can survive the entry of a guilty plea only if counsel fails to

provide competent advice leading up to the plea and the plea is then involuntary

and unintelligent. State v. Carroll, 767 N.W.2d 638, 643-44 (Iowa 2009).

         A. Motion to suppress. First, Puckett asserts plea counsel was ineffective

in failing to file a motion to suppress his confession, contending he was in custody

and received no Miranda2 warnings. Puckett maintains that he was in custody at

the time he gave his statement to police, he was not read his Miranda warnings,

and the police denied entry to his lawyer who arrived at the station while Puckett

was giving his statement. Puckett acknowledges he was not under arrest when

he gave his statement but contends other circumstances suggest his freedom was

restrained—“the interrogation room door was locked, and Mr. Puckett was not free

to leave or consult with Mr. Murphy, then he clearly was in custody.” See State v.

Schlitter, 881 N.W.2d 380, 395 (Iowa 2016) (stating one is in custody for Miranda

purposes “upon formal arrest or under any other circumstances where the suspect

is deprived of his or her freedom of action in any significant way” (quoting State v.

Ortiz, 766 N.W.2d 244, 251 (Iowa 2009)).

         Our de novo review of the record supports a finding his plea counsel

breached no duty in determining Puckett’s statement was given voluntarily and a

motion to suppress would likely have failed. Puckett testified he went voluntarily

to the sheriff’s office and was not in custody. He testified he knew he was free to



2
    Miranda v. Arizona, 384 U.S. 436, 473 (1966).
                                           6


leave. He acknowledged he was told he could have an attorney present and he

chose to proceed. When Murphy (who asserted he had not yet be retained but

was called by Puckett’s mother and informed that Puckett had gone to the sheriff’s

office to give his side of the story) arrived at the sheriff’s office, Puckett was aware

of his presence and waved him away from the room. The PCR court specifically

found the statement was voluntary and that the voluntariness of Puckett’s

confession “is not an issue.” We agree. See State v. Brothern, 832 N.W.2d 187,

192 (Iowa 2013) (“To establish that his trial counsel breached a duty, [the

applicant] has to show the attorney’s performance fell below the standard of a

‘reasonably competent attorney.’ ‘We will not find counsel incompetent for failing

to pursue a meritless issue.’” (citations omitted)).

       B. Plea negotiation. Puckett next contends that “if there was going to be a

plea, it would have been more appropriate for Attorney Murphy to advocate for a

plea to [child endangerment resulting in death], or any of the many potential lesser

included offenses.” Unfortunately for Puckett, a defense attorney is not in control

of the plea negotiations (which the PCR court noted). “It was in the discretion of

the prosecutor to request the charge.” See State v. Alvarado, 875 N.W.2d 713,

718 (Iowa 2016) (“Overlap only prevents double convictions or double

punishments, not a single conviction on one charge based on the prosecutor’s

charging discretion.” (emphasis added)).

       C. Knowing and voluntary plea. Puckett argues the plea court and defense

counsel asserted pressure upon him to use specific words at the plea hearing. See

Puckett, 2015 WL 3884870 at *1-2 (setting out the colloquy). He states, “The trial

judge required Mr. Puckett to say that he intended to hurt the child.” Reluctance
                                          7

on Puckett’s part does not equate with involuntariness. See State v. Speed, 573

N.W.2d 594, 597 (Iowa 1998) (“Lawyers and other professional[s] often persuade

clients to act upon advice which is unwillingly or reluctantly accepted. And the fact

that such advice is unwillingly or reluctantly acted upon is not a ‘. . . factor

overreaching defendant’s free and clear judgment’ of what should be done to find

a means to alleviate the situation with respect to which the client seeks advice.”

(citations omitted)). The law does not require a defendant act “of his own free will,”

but rather, a defendant “may elect to plead guilty to a lesser offense when he is

also charged with a more serious offense” and his plea will not be considered

coerced. Id. (quoting State v. Lindsey, 171 N.W.2d 859, 865 (Iowa 1969)).

       Puckett also asserts plea counsel did not adequately investigate his mental

health and its potential effects on his actions.

       [T]he distinction between ineffective-assistance-of-counsel claims
       that do not survive a guilty plea as illustrated in Speed and those that
       do survive is the existence of a showing that the pre-plea ineffective
       assistance of counsel rendered the plea involuntary or unintelligent.
       The component of the claim involving the voluntariness of the plea is
       largely tied to the prejudice element of all ineffective-assistance-of-
       counsel claims. Id. This element means criminal defendants who
       seek postconviction relief after pleading guilty must establish the
       guilty plea would not have been entered but for the breach of duty by
       counsel. Id. Thus, when a postconviction relief claim following a
       guilty plea is properly alleged, a case-by-case analysis is necessary
       “to determine whether counsel in a particular case breached a duty
       in advance of a guilty plea, and whether any such breach rendered
       the defendant’s plea unintelligent or involuntary.” Id.

Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011).

       With respect to his assertion that plea counsel did not adequately

investigate the case, Puckett complains that counsel did not seek his medical

records or explore a defense based on his former diagnoses of ADHD or bipolar
                                          8


disorder. The PCR court found the defenses Puckett had available “were not likely

to be successful at trial,” which leads to a conclusion Puckett suffered no prejudice.

Moreover, Puckett “must establish the guilty plea would not have been entered but

for” counsel’s failure to obtain his medical records. Id. Puckett testified, “Had I

known then what I know now, I don’t think I would have accepted the plea.”

       The court observed:

       Puckett’s mother acknowledged his guilt as to [charge of child
       endangerment resulting in death] and only questioned Count I as
       amended [second-degree murder]. Her testimony establishes that
       she believed he was capable of pleading guilty to a charge . . . . On
       the facts presented, this court concludes that Puckett was competent
       to voluntarily enter a plea of guilt on November 25, 2013. Puckett’s
       mental condition did not prevent him from knowingly and
       understandingly entering his plea of guilty.

       The PCR court also rejected any challenge to the in-chambers discussion

between the district court and counsel prior to the plea taking because the

conversations were disclosed to Puckett during the plea proceeding. The PCR

court found,

       No showing of a conflict has been offered by Puckett. Rather, the
       chambers discussion was repeated in open court before Puckett.
       The chambers conversation was centered on the elements of the
       crime as were the statements in open court. Certainly, Puckett
       understood his plea to be for the benefit of the bargain.

       Upon our de novo review of the record, we agree with the district court that

Puckett knowingly and voluntarily entered his guilty plea. We adopt the court’s

statement:

               This court specifically finds that Puckett wishes to re-litigate
       the element of malice of aforethought. He refuses to acknowledge
       that intent can be inferred from actions. . . . It was in the discretion
       of the prosecutor to request the [second-degree murder] charge
       subject to the 70% requirement. Defense counsel, due to Puckett’s
       confession, was at the mercy of the prosecutor. Puckett’s plea
                                            9


       pursuant to the plea bargain was the best result Puckett could obtain
       under the circumstances. Puckett at this time suffers from “buyer’s
       remorse” and wishes he could have obtained a better bargain.

       D. Other claims. Puckett also contends the PCR court failed to address

additional claims raised in his amended application. He states, “The PCR court

did not make such specific findings and conclusions [required by Iowa Rule of Civil

Procedure 1.904(a)], but lumped many issues together. We conclude the court

adequately addressed each of the issues raised.3 Moreover, the failure of a court

to provide specific findings and conclusions does not alone give cause for relief

but does preserve error on the issues so the appellate court may review the merits

of the issues. See Lemasters, 821 N.W.2d at 862-66 (stating a rule 1.904 motion

preserves error so the merits of the issue may be determined on appeal). Even if

we were to conclude the issues were not adequately addressed, Puckett has

neither provided authority for the grant of relief on the basis of inadequate reasons

nor argument why any of the three issues have merit. See State v Short, 851

N.W.2d 474, 479 (Iowa 2014) (“We need not consider the extent to which these

arguments may have had merit, as under our rules and our precedents they have

been waived in this appeal.” (citing Iowa R. App. P. 6.903(2)(g)(3))); State v.

Seering, 701 N.W.2d 655, 661 (Iowa 2005) (“In the absence of an argument on

these allegations [on appeal], we deem them waived.”); Hyler v. Garner, 548

N.W.2d 864, 870 (Iowa 1996) (confining consideration to issues raised on appeal);


3
  In fact, the court granted a hearing on Puckett’s rule 1.904(a) motion, and three issues
were raised to the court. One of the issues the court considered irrelevant, and the court
believed the other two issues were adequately addressed in its original ruling. The three
issues were (1) whether defense counsel stated to Puckett “I have a reputation to keep”
(found to be irrelevant), (2) the plea was not entered knowingly and voluntarily, and (3)
whether defense counsel was required to inform Puckett of all lesser-included offenses of
the original charge.
                                         10

Richardson v. Neppl, 182 N.W.2d 384, 390 (Iowa 1970) (“A proposition neither

assigned nor argued presents no question and need not be considered by us on

review.”). Thus, we find no relief can be granted upon the additional claims in the

amended application.

       Finally, Puckett asserts plea counsel’s performance was so deficient as to

constitute structural error. See generally Lado v. State, 804 N.W.2d 248, 252

(Iowa 2011). Puckett did not raise the issue of structural error below, and we

therefore will not address the claim on appeal. See Lee v. State, 844 N.W.2d 668,

676-77 (Iowa 2014) (“As a general proposition, ‘issues must be raised in the district

court before we may review them on appeal.’” (citation omitted)). Nor has Puckett

shown plea counsel’s performance was constitutionally deficient.

       Having failed to establish plea counsel was ineffective, we affirm the denial

of the PCR application.

       AFFIRMED.
