                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0442
                                Filed July 6, 2017


THOMAS ANTHONY MILLER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mark E.

Kruse, Judge.



      Thomas Anthony Miller appeals from the district court’s denial of his

application for postconviction relief following his conviction for second-degree

murder. AFFIRMED.



      Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

       Thomas Anthony Miller appeals from the district court’s denial of his

application for postconviction relief following his conviction for second-degree

murder. We affirm the district court’s denial.

   I. Background Facts and Proceedings

       Miller was charged with first-degree murder and was found guilty of

second-degree murder by a jury. Miller appealed, and this court affirmed his

conviction. See State v. Miller, No. 04-1785, 2006 WL 228904, at *1 (Iowa Ct.

App. Feb. 1, 2006). In the underlying criminal trial, the State had filed a motion in

limine regarding Miller’s intent to call Sister Nadine Meyer to testify as to the

Catholic Church’s formal position on suicide. The court had sustained the motion

in limine without prejudice to Miller’s right to make an offer of proof at trial. Sister

Meyer was not called as a witness, and no offer of proof was made. Thus, error

was not preserved, and there was no review of the trial court’s ruling on direct

appeal.

       Miller filed this application for postconviction relief asserting his trial

counsel was ineffective in failing to make an offer of proof of Sister Meyer’s

testimony. The facts of the case are set out in Miller, 2006 WL 228904, at *1-3,

and need not be reiterated except where they specifically relate to the relevancy

of Sister Meyer’s proposed testimony.          Miller contended at trial that he was

attempting suicide when the victim, Janet McCammant, interfered with his efforts,

and she was accidently stabbed and killed in the ensuing altercation.

       The obvious difficulty with Miller’s defense was his failure to explain the

attempted suicide/accidental stabbing scenario in his initial calls to family
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members and statements to the police. Miller called his parents and some of his

siblings shortly after the incident and before the police were called. He told his

relatives he had stabbed and killed someone but made no mention of the

attempted suicide/accident scenario.       In his initial discussion with the police,

Miller told them he had been drinking with McCammant at a tavern, ordered a

cab to take her home, and then had the cab come back and take him to his

apartment.    In fact, a cab had delivered both McCammant and Miller to his

apartment. Miller’s brother and his girlfriend had visited the apartment after Miller

and McCammant had left the tavern, and both Miller and McCammant were there

and nothing was amiss. Later on in his initial interview with the police, Miller

corrected himself and stated he and McCammant had arrived at the apartment

together, she left, and—unknown to him—she returned. He was awakened by

what he thought was an intruder. He did not turn on the light and armed himself

with a knife.    He told the police he had turned quickly and fatally stabbed

McCammant.

       At trial, Miller claimed he took the knife and announced to McCammant

that he was going to commit suicide by cutting his wrist, McCammant tried to

stop him, and she was accidently fatally stabbed in the ensuing struggle. Miller

also advanced a defense of intoxication and diminished responsibility. He was

interviewed by a clinical psychologist, who testified in his behalf, and a doctor,

who testified on behalf of the State.          Miller had given both of the medical

professionals the attempted suicide/accident version of the events.                 His

explanation of his failure to give the attempted suicide/accident version to the

police or his relatives in the initial calls was his aversion to suicide due to a belief
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in the sanctity of life as taught by the Catholic faith, to which he and his family

subscribed.    His intent in calling Sister Meyer was to set out the Catholic

Church’s official position on suicide.

       The postconviction-relief action was tried on stipulation. No effort was

made to call Miller’s initial trial counsel. However, a deposition of Sister Meyer

had been taken before trial. When asked specifically about the Catholic Church’s

doctrine on suicide, she asserted that suicide was considered a serious and

grave offense. She stated she did not know Miller, had no idea what his personal

beliefs were, or what he had been taught. She stated that the Catholic faith’s

aversion to suicide is based on the general opposition to killing, but the aversion

to suicide had diminished in the last several years and the training from one

parish to another varied to some degree. She further stated that she had no idea

what the training or education relative to suicide was in the parish where Miller

had been educated. Her testimony amounted to the Catholic Church’s adverse

position on suicide and nothing more. Contradicting Miller’s claim, the record

established Miller had threatened and attempted suicide other times in the past

and his family was well aware of the threats and attempts.

       Miller contends Sister Nadine Meyer’s testimony was relevant, his trial

counsel was ineffective in failing to make an offer of proof, and the court erred in

denying his application for postconviction relief. The State maintains that Miller

has failed to meet his burden of establishing his trial counsel was ineffective for

not presenting an offer of proof.
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   II. Error Preservation

         When an issue is raised before the court and ruled on by it, error has been

preserved. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The failure of

trial counsel to make an offer of proof was raised before and decided by the

postconviction trial court. Error has been preserved.

   III. Scope of Review

         Appeals from the denial of a postconviction-relief proceeding are ordinarily

reviewed for correction of errors at law, but when a constitutional issue is

involved, it is reviewed de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa

2012).

   IV. Discussion

         To prevail on a claim of ineffective assistance of counsel, the claimant

must prove by a preponderance of the evidence that: (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001).          If no prejudice is shown, a claim can be

dismissed on that ground alone.        Id.   A claim of ineffective assistance must

overcome the presumption that counsel is competent.            Taylor v. State, 352

N.W.2d 683, 685 (Iowa 1984).             An accused is not entitled to perfect

representation but only the level of representation that is within the normal range

of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). For relief to

be granted, there must be a determination that but for counsel’s ineffective

assistance, there is a reasonable probability the result would have been different.

Ledezma, 626 N.W.2d at 145. Counsel is not ineffective for failing to make a

meritless objection. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
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       The only possible argument for relevancy of Sister Meyer’s testimony was

to explain that Miller did not initially tell the police or his relatives about the

suicide/accident scenario he related at trial because of his and his family’s

aversion to suicide based on their religious faith. Sister Meyer was only able to

state the general position of the Catholic Church regarding suicide. She did not

know Miller, his specific beliefs, the education he may have received on the

issue, or the beliefs of his family. She stated she had never been in the parish

where Miller received his training and training varies from parish to parish. She

further stated the Catholic Church’s opposition to suicide had softened somewhat

over her lifetime. It was Miller’s and his family’s beliefs regarding suicide, and

not the official position of the Catholic Church, that was relevant to his

inconsistency. Miller’s beliefs, his parents’ beliefs, and the teachings he received

in his Catholic training had not deterred him from threatening or attempting

suicide on prior occasions. Finally, the suicide/accident scenario presented at

trial was not only omitted in his initial discussion with his family, who were

arguably religiously sensitive to suicide, but also contradictory to what he had

told the police. Sister Meyer’s testimony was not relevant to any justiciable issue

before the court or jury. Counsel has no obligation to make a meritless offer of

proof. Id.

       Also related to the relevancy issue, there was no showing Sister Meyer’s

testimony would have had any effect on the outcome of the trial. No prejudice

has been shown as the result of counsel’s failure to make an offer of proof, and

therefore, Miller’s claim fails. See Ledezma, 646 N.W.2d at 142.
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       Miller has failed to prove counsel breached a duty or that prejudice

resulted. The decision of the trial court is affirmed.

       AFFIRMED.
