                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2059
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHARIAH JONATHAN DAVIS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Christopher

C. Foy, Judge.



      A defendant appeals from the verdict reached in the bench trial based on

a stipulated record finding him guilty of two counts of domestic abuse assault

resulting in injury and the judgment and sentence entered after the verdict.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Rachel Ginbey, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

       Zachariah Jonathan Davis appeals from the verdict reached in the bench

trial based on a stipulated record finding him guilty of two counts of domestic

abuse assault resulting in injury and the judgment and sentence entered after the

verdict.

   I. Factual Background and Course of Proceedings.

       On November 20, 2011, Davis kicked his wife, Ashley, in the face, struck

her in the back of her head with a “monkey fist” keychain, stepped on her neck,

hit her under the eyes with a baseball bat, tied her wrists to her belt loops with zip

ties, and otherwise hit and abused her through Thanksgiving Day of 2011.

Ashley’s mother went to the home Ashley shared with Davis and their children,

observed Ashley’s extensive bruising, and took her to the hospital, where she

was admitted on November 24, 2011. Law enforcement officers were called to

the hospital and observed old and new bruising and red marks on Ashley. Davis

was interviewed and admitted causing several of the injuries but asserted they

were administered in self-defense when Ashely was under the influence of

controlled substances. Tests taken for Ashely at the hospital were negative for

controlled substances.

       A trial information filed on December 7, 2011, charged Davis with

domestic assault resulting in injury, and on June 6, 2012, a trial information was

filed charging him with sexual abuse in the third degree and four counts of

domestic assault resulting in injury. Davis filed a notice he intended to rely on a

theory of self-defense. The two trial informations were consolidated for trial. All
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but two of the counts that charged domestic abuse resulting in injury were

dismissed.

       On August 31, 2012, Davis filed a request for Ashley’s confidential

medical information. The protocol used by Davis’s counsel was that set out in

State v. Cashen, 789 N.W.2d 400, 407-10 (Iowa 2012). The State resisted, a

hearing was held, and an order was entered permitting defense counsel to

review some of Ashley’s mental health records.         A protective order barred

dissemination of any information contained in the records. After review, Davis’s

counsel proceeded under the fourth step of the Cashen protocol and filed a

request for that part of the confidential information he felt would be beneficial to

Davis’s defense.

       On April 11, 2013, the trial court entered an order stating that Iowa Code

section 622.10(4) (2013) was the exclusive method by which an accused could

obtain medical records of an alleged victim in a criminal proceeding and the

Cashen protocol was no longer applicable. The trial court noted in its ruling that

a request for confidential medical information must be made within forty days

after the arraignment and no such request had been timely made. The court

stated an untimely request constituted a waiver of any right to the requested

document. See Iowa Code § 622.10(4). Further, the court stated Davis had not

alleged, let alone proved, the material was not available from some other source

or that Davis had a compelling need for the requested information to prepare his

defense, both of which are prerequisites to obtaining a court order to view

confidential medical records under the statute. See id. After making the finding

that the application was not timely filed and the two prerequisites had not been
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met, the court denied any access to the records requested. Counsel filed a

motion requesting a hearing to clarify the April 11 order. The request for a

hearing was denied, and the trial court reaffirmed its previous order.          Davis

applied to the Iowa Supreme Court for interlocutory review, but it was denied.

         Davis filed a written waiver of his right to a jury trial and stipulated to a

bench trial on the minutes of testimony and eleven other exhibits, which included

depositions and other medical records that related to her treatment after the

alleged injuries. The court found Davis guilty of both charges.

         Davis has appealed, claiming ineffective assistance of counsel for

attempting to obtain the confidential medical records by using the Cashen

protocol instead of following procedures set out by Iowa Code section 622.10(4),

and allowing him to proceed on a stipulated trial of the minutes and exhibits

without assuring that he had made a voluntary and knowing waiver of his right to

confront and compel witnesses to appear for the purpose of providing a defense.

   II. Standard and Scope of Review.

         Claims of ineffective assistance of counsel raise constitutional issues and

are therefore reviewed de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa

2011).

   III. Error Preservation.

         The ordinary rules of error preservation do not usually apply to claims of

ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010).
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   IV. Discussion.

       A. Counsel’s failure to seek the victim’s medical records as provided
          by statute thus eliminating their availability as evidence at trial.

       To establish a claim of ineffective counsel it is necessary that the claimant

establish both inadequate assistance and prejudice.        Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2011). The failure to pursue the victim’s medical records

using the protocol set out by statute was an error and constituted inadequate

assistance.    The issue becomes whether prejudice resulted.          To establish

prejudice, the applicant must determine “‘that there is a reasonable probability

that but for counsel’s unprofessional errors the result of the proceeding would

have been different.’” Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668,

694 (1984)).

       It is not necessary to determine whether the victim’s medical records

would have been available to Davis if the statute had been followed.            The

confidential records have been available to this court. There is nothing in those

records indicating a different result would have been reached before the district

court if counsel had been granted access to them. There is nothing to indicate

Ashley was aggressive or that would otherwise help Davis’s self-defense

argument.      Ashley’s credibility is not a significant factor since Davis has

essentially admitted he administered the injuries. Ashley’s drug use, character

deficiencies, instability, and other history were made abundantly clear in

depositions.    The confidential medical records add little or nothing, let alone

justify breaching the confidentiality of Ashley’s medical records.
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       B. Counsel’s failure to object to a trial on the stipulated record.

       Precedent holds that due process rights are not violated by failing to follow

the critical elements of a guilty plea colloquy when accepting a criminal trial on a

stipulated record. State v. Everett, 372 N.W.2d 235, 237 (Iowa 1985). Counsel

is not ineffective for failing to pursue a meritless claim. State v. Dudley, 766

N.W.2d 606, 620 (Iowa 2009). When a stipulated bench trial is used, a trial court

must (1) verify that a jury trial has been waived, (2) confirm the documents that

constitute the record, and (3) find the facts specially and on the record. State v.

Sayre, 566 N.W.2d 193, 196 (Iowa 1997). The trial court followed the procedure

and any objection to the process would have been meritless. Counsel was not

ineffective for failing to object to the procedure.

       AFFIRMED.
