                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0587
                                  Filed July 19, 2017


KEVIN SELLERS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McClellan, Judge.



      Appeal from the denial of an application for postconviction relief.

AFFIRMED.



      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       Kevin Sellers beat to death his girlfriend Laura Welch. The State charged

Sellers with murder in the second degree. The parties reached an agreement

pursuant to which the State amended the trial information to charge Sellers with

attempted murder and two counts of willful injury causing serious injury, and

Sellers agreed to proceed with a bench trial on the minutes of testimony.

Following a trial on the minutes, Sellers was convicted as charged in the

amended trial information. In his direct appeal, Sellers challenged the sufficiency

of the evidence supporting his conviction for attempted murder, contending

“because he had assaulted and beaten Welch in the past, his intent . . . was only

to beat Welch like he had done before, not to kill her.” State v. Sellers, No. 12-

0869, 2013 WL 105281, at *4 (Iowa Ct. App. Jan. 9, 2013). This court affirmed

his convictions. See id. at *5. Sellers filed an application for postconviction

relief, which the district court denied. Sellers timely filed this appeal.

       “Generally, postconviction relief proceedings are reviewed for corrections

of errors at law.” Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 488 (Iowa 2010)

(citing DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)). However, claims of

ineffective assistance of counsel are reviewed de novo. See State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).

       To prevail on his claim, the applicant must show “(1) his trial counsel failed

to perform an essential duty, and (2) this failure resulted in prejudice.” Id. (citing

Strickland v. Washington, 466 U.S. 688, 687–88 (1984) and State v. Dalton, 674

N.W.2d 111, 119 (Iowa 2004)). “The claimant must prove both elements by a

preponderance of the evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa
                                          3

2012) (citing King v. State, 797 N.W.2d 565, 571 (Iowa 2011)). “Failure to make

the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700; see also State v.

Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s inability to prove

either element is fatal.”). If the applicant fails to meet his or her burden on either

element, the court need not address the other.        See Dempsey v. State, 860

N.W.2d 860, 868 (Iowa 2015) (“If we conclude a claimant has failed to establish

either of these elements, we need not address the remaining element.”).

       To establish counsel breached a duty, the applicant must prove “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

“[C]ounsel’s performance is measured against the standard of a reasonably

competent practitioner.”    State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003).

There is a strong presumption of counsel’s competence. See Strickland, 466

U.S. at 689 (“Judicial scrutiny of counsel’s performance must be highly

deferential.”).

       It is all too tempting for a defendant to second-guess counsel’s
       assistance after conviction or adverse sentence, and it is all too
       easy for a court, examining counsel’s defense after it has proved
       unsuccessful, to conclude that a particular act or omission of
       counsel was unreasonable.          A fair assessment of attorney
       performance requires that every effort be made to eliminate the
       distorting effects of hindsight, to reconstruct the circumstances of
       counsel’s challenged conduct, and to evaluate the conduct from
       counsel’s perspective at the time.

Id. “Miscalculated trial strategies and mere mistakes in judgment normally do not

rise to the level of ineffective assistance of counsel.” Lado v. State, 804 N.W.2d
                                         4

248, 251 (Iowa 2011) (quoting Millam v. State, 745 N.W.2d 719, 721 (Iowa

2008)).

       To establish prejudice, the applicant must prove “that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Strickland, 466 U.S. at 687. It is not enough to show the breach had

only some effect on the outcome, as nearly any act or omission by counsel

results in some change to the outcome one way or another, but not necessarily in

a way that would undermine its reliability.      See id. at 693.     Rather, “[t]he

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

       Sellers first contends his trial counsel were ineffective because they were

unprepared to try his case and coerced him to proceed with a bench trial on the

minutes.   At the postconviction trial, Sellers testified he did not believe his

lawyers were prepared for trial. He was unaware of any defense strategy. His

lawyers had not informed him of any work done on his case leading up to trial.

Sellers testified his lawyers repeatedly pressured him to proceed to a bench trial

on the minutes. He noted his jury trial was set for the Monday following the

Friday on which he finally agreed to trial on the minutes. Sellers testified he

reluctantly agreed to proceed as recommended: “I really didn’t see any evidence

of them preparing any kind of defense. . . . I didn’t see them accepting my doing

anything other than what they [were] suggesting, you know. I didn’t see how I
                                        5


had a chance at a trial with them if they [weren’t] going to do anything to defend

me, you know.”

      Sellers next contends his lawyers were ineffective in failing to discredit

jailhouse informant Larry Cox. Sellers and Cox were held in the same pod at the

jail. Sellers told Cox he assaulted Welch and knocked her unconscious. See

Sellers, 2013 WL 105281, at *2. Sellers told Cox he left Welch unconscious and

unattended on the floor for several hours before calling for assistance so he

could think of a way to explain her injuries.    See id.   He also told Cox he

pressured Welch’s family to discontinue Welch’s life support “out of fear that she

would regain consciousness and remember what had occurred.”            Id.   In his

postconviction testimony, Sellers claims Cox exaggerated what Sellers told him.

Sellers also believed Cox’s statements were inconsistent with the medical

evidence in the case.

      Although Sellers’s claims appear different, they are essentially the same.

He essentially contends his trial counsel were ineffective in recommending

Sellers proceed with a bench trial on the minutes of testimony to the amended

charges rather than trial by jury on the murder charge. On de novo review, it is

clear Sellers’s counsel’s advice was a strategic decision made upon investigation

of the law and the relevant facts. “[S]trategic decisions made after ‘thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable . . . .’” Ledzema v. State, 626 N.W.2d 134, 143 (Iowa 2001)

(quoting Strickland, 466 U.S. at 690). Such is the case here. For this reason

alone, the claims fail. Nonetheless, we discuss them in some greater detail.
                                          6


       Like the district court, we conclude Sellers failed to establish a breach of

duty. On de novo review of the record, we find adequate evidence Sellers’s

lawyers were prepared for trial. They discussed the case and trial strategy with

Sellers, including discussions regarding the burden of proof and raising the

defenses of intoxication or diminished responsibility. They conducted discovery,

including depositions at which Sellers was present. They prepared for a potential

jury trial up until the time of the trial on the minutes. Sellers himself testified he

aided his lawyers with trial preparation. Further, there is no evidence Sellers was

coerced into proceeding with a trial on the minutes of testimony. The district

court conducted a thorough colloquy with the defendant regarding the waiver of

his right to jury trial and his desire to proceed to a bench trial on the amended

charges. Sellers repeatedly confirmed he understood the procedure and was

comfortable moving forward after consultation with his attorneys.         During the

colloquy, Sellers specifically acknowledged he had not been threatened or

coerced in waiving his right to jury trial. During his postconviction trial, Sellers

admitted he was not forced to proceed with the bench trial, but he stated he had

few good options. “[N]o accused wants to be charged with crime,” but the fact

the defendant was forced to choose between two alternatives, neither of which

he liked, does not make his choice involuntary within the meaning of the law.

State v. Speed, 573 N.W.2d 594, 597 (Iowa 1998).

       We also conclude there was no breach of duty in failing to proceed with

the jury trial and attack Cox’s credibility. Cox was a credible witness. Sellers’s

lawyers deposed Cox and determined he would present to the jury as a credible

witness. In addition, Cox possessed non-public information that would bolster his
                                           7

credibility. See Sellers, 2013 WL 105281, at *2. Both of Sellers’s trial attorneys

testified they compared Cox’s statements to the medical examiner’s testimony.

One lawyer testified they were consistent, and the other lawyer was not

expressly asked whether the two accounts were consistent. The defense team

looked into other ways to impeach Cox but ultimately concluded his testimony

would be damning. Even if this strategy was miscalculated, we are reluctant to

second-guess miscalculated trial strategies.       See Lado, 804 N.W.2d at 251.

“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.” Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012)

(quoting Ledezma, 626 N.W.2d at 142). Here, both attorneys were diligent in

their representation. They did not breach an essential duty in recommending

Sellers agree to a trial on the minutes, which came with reduced charges, instead

of a jury trial on a greater charge that would have allowed them to cross-examine

Cox.

         In his appeal brief, Sellers argues his lawyers were ineffective in allowing

the district court to consider Cox’s testimony during the trial on the minutes of

testimony. Sellers argues Cox obtained the information from Sellers in violation

of State v. Marshall, 882 N.W.2d 68 (Iowa 2016). This issue was not presented

to the district court, and the issue is not preserved for appellate review. See

Segura v. State, 889 N.W.2d 215, 219 (Iowa 2017). We do not consider the

issue.

         For the foregoing reasons, we affirm the judgment of the district court.

         AFFIRMED.
