                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2223
                                Filed July 6, 2017


CHARLES JAMES DAVID OLIVER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Guthrie County, Paul R. Huscher,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Angela L. Campbell and Gary D. Dickey of Dickey & Campbell Law Firm,

P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




      Heard by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, Presiding Judge.

       Charles Oliver appeals the district court’s denial of his application for

postconviction relief (PCR), following his conviction for third-degree sexual

abuse, in violation of Iowa Code sections 709.1 and 709.4(2)(b) (2009).

Specifically, Oliver claims his counsel was ineffective in failing to seek his

accuser’s mental-health and substance-abuse records and in failing to move to

suppress recorded phone conversations. He also claims his right to a speedy

trial was violated and he should be resentenced because there was a conflict in

the available sentencing statutes. Because we find no reversible error, we affirm

the denial of Oliver’s application for PCR.

       I.      Background Facts and Proceedings

       In 2010, Oliver was convicted of third-degree sexual abuse, in violation of

Iowa Code sections 709.1 and 709.4(2)(b). Because Oliver stipulated that he

had a prior conviction for third-degree sexual abuse, the trial court applied the

class “A” felony enhancement under Iowa Code section 902.14 and subsequently

sentenced Oliver to a life-without-parole term of imprisonment. Our supreme

court affirmed Oliver’s sentence on direct appeal. State v. Oliver, 812 N.W.2d

636, 654 (Iowa 2012).

       On May 21, 2012, Oliver filed an application for postconviction relief,

which he later amended. In his application, Oliver claimed his trial counsel was

ineffective, his right to a speedy trial was violated, and the sentencing

enhancement he received conflicts with another sentencing provision. After a

hearing, the PCR court issued a ruling on December 8, 2015, that denied Oliver’s

application in its entirety.
                                          3


      Oliver appeals.

      II.     Scope and Standard of Review

      Generally, we review challenges to rulings on applications for PCR for

errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “However,

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

novo.” Id.

      III.    Ineffective Assistance of Counsel

      Oliver claims that his trial counsel was ineffective.    Specifically, Oliver

claims his trial counsel was ineffective in failing to attempt to acquire his

accuser’s mental-health and substance-abuse records and in failing to move to

suppress recordings of conversations Oliver had with his wife while he was in jail.

The State disagrees.

      “In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.”    State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

Counsel’s performance is measured “objectively by determining whether [it] was

reasonable,   under     prevailing   professional   norms,   considering   all   the

circumstances.” State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (alteration in

original) (quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)).

Additionally, “strategic decisions made after ‘thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.’” Ledezma, 626

N.W.2d at 143 (quoting Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).

In assessing counsel’s performance, we look to the totality of the circumstances.

Maxwell, 743 N.W.2d at 196. To demonstrate prejudice, a claimant must show
                                          4


“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U.S. at 694. “In

determining whether this standard has been met, we must consider the totality of

the evidence . . . .” State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003).

              A.     Mental-Health and Substance-Abuse Records

       At trial, Oliver claimed, contrary to his accuser’s testimony, he did not

have sex with the victim.      Thus, Oliver contends his counsel should have

attempted to acquire the mental-health and substance-abuse records of the

accuser in order to impeach her credibility. At the PCR trial, trial counsel testified

that while he was aware of some of the accuser’s personal issues, he did not

believe the records would be admissible because he did not believe he could

make a connection between the accuser’s issues and her truthfulness. When

asked whether he could find an expert to make the connection, trial counsel said:

       I happen to deal with a great deal of bipolar and substance abuse
       in defending violent sexual offenders, I deal with some of the best
       experts there are, and I know they wouldn’t say it. Unless the
       bipolar is so manic it could cause delusions, and there was no
       evidence of that . . . .

He also testified that raising seemingly unhelpful personal issues of an alleged

victim can be “a two-edged sword” because the jury may turn against the

defendant if the victim is seen to be vulnerable.

       Based on our de novo review of the record, we conclude trial counsel did

not breach an essential duty in not attempting to acquire his accuser’s mental-

health and substance-abuse records. Trial counsel testified that he was aware of

potential evidence regarding the accuser’s mental health and potential substance

use, but he did not believe further investigation of those matters would lead to
                                          5


admissible evidence that would be helpful to Oliver. Critically, the record shows

trial counsel only had Oliver’s vague allegations relating to a “panic attack” to rely

on in assessing the relevance of potential mental-health issues suffered by the

accuser. Under the legal standard in effect at the time of trial, trial counsel did

not have a “reasonable basis to believe the records [were] likely to contain

exculpatory evidence tending to create a reasonable doubt as to the defendant’s

guilt.” See State v. Cashen, 789 N.W.2d 400, 408 (Iowa 2010), superseded by

statute, Iowa Code § 622.10 (2011). Trial counsel was aware of the relevant

facts and the applicable law and made a reasonable strategic decision not to

pursue impeachment evidence based on the accuser’s mental-health and

substance-abuse records. Under these circumstances, Oliver has failed to show

trial counsel breached an essential duty.

              B.     Recordings of Conversations Between Oliver and his

              Wife

       Oliver also asserts his counsel should have sought to exclude recordings

of telephone calls between him and his wife while Oliver was in jail. In support,

Oliver points to State v. Cromer, 765 N.W.2d 1 (Iowa 2009), to assert his

admissions on the recordings were the product of coercion. The State contends

the recordings here are distinguishable from those in Cromer.

       In addressing this claim, the PCR court concluded trial counsel did not

breach an essential duty and stated:

       The circumstances of this case vary markedly from those of
       Cromer. In Cromer, the telephone call occurred between the
       defendant and the alleged victim. The call was initiated by the
       alleged victim at the suggestion of the police. The police prepared
       the alleged victim for the call by suggesting the topics of
                                            6


       conversation, and two detectives were present and coached her
       during the conversation. When the conversation ebbed, the police
       prodded the alleged victim to keep talking.
              In the present case, the applicant initiated each of the calls.
       The police took no part in suggesting the calls, coaching the
       applicant’s wife, or suggesting the topics of conversation. The calls
       were recorded in accordance with routine jail practice, and both
       parties were aware of that fact. There is not a hint of police
       coercion in the calls made in this case. The calls in this case were
       not emotional and dramatic calls for justice by a complaining
       witness, nor were they mere lay opinions regarding whether the
       applicant’s conduct amounted to the crime of sexual abuse in the
       third degree. This court finds that an objection to the introduction of
       the content of the phone calls between [Oliver] and [Oliver’s wife]
       would have been without merit.

(citing id. at 4). We agree. There is no evidence of the coercion noted in Cromer

nor any other reason the recordings should have been excluded.                 Thus, an

objection would have been without merit, and trial counsel did not breach an

essential duty in failing to object to admission of the recordings. See State v.

Tompkins, 859 N.W.2d 631, 637–38 (Iowa 2015) (“Further, where a claimant

alleges counsel’s failure to pursue a particular course breached an essential

duty, there is no such duty when the suggested course would have been

meritless.”).

       IV.      Speedy Trial

       Oliver asserts that his right to a speedy trial was violated because his

waiver of the right was not voluntary, knowing, and intelligent.1           Specifically,

Oliver argues that he only waived his right because, after his original trial counsel



1
  It is unclear why this claim was brought in a PCR action and not on direct appeal. See
Iowa Code § 822.8 (2009) (“Any ground finally adjudicated or not raised, or knowingly,
voluntarily, and intelligently waived in the proceeding that resulted in the conviction or
sentence, or in any other proceeding the applicant has taken to secure relief, may not be
the basis for a subsequent application . . . .”). Nonetheless, the district considered and
ruled on the claim.
                                          7


was substituted with new counsel from the State Public Defender’s special

defense unit, his new counsel needed more time to prepare for trial and

pressured him to waive his right. The State contends Oliver’s waiver was proper.

       Article I, section 10 of the Iowa Constitution provides: “In all criminal

prosecutions, and in cases involving the life, or liberty of an individual the

accused shall have a right to a speedy and public trial by an impartial jury; . . . .”

In conjunction with that right, Iowa Rule of Criminal Procedure 2.33(2)(b) states:

       If a defendant indicted for a public offense has not waived the
       defendant’s right to a speedy trial the defendant must be brought to
       trial within 90 days after indictment is found or the court must order
       the indictment to be dismissed unless good cause to the contrary
       be shown.

A defendant may waive the right to a speedy trial, but the burden of showing

waiver is on the State. State v. Taylor, 881 N.W.2d 72, 76, 79 (Iowa 2016). “[I]n

order to waive speedy trial rights, the defendant must do so knowingly and

intelligently.” Id. at 79. We review the district court’s waiver ruling for an abuse

of discretion. Id. at 76.

       After Oliver was charged by complaint and affidavit on April 8, 2010, he

was appointed a contract attorney by the court on April 12. A trial information

was filed on April 19 with arraignment set for May 16. After a supplemental trial

information was filed on May 10, the charge against Oliver was elevated to a

class “A” felony because of his prior conviction.       Accordingly, Oliver’s initial

counsel withdrew, and new counsel from the State Public Defender’s special

defense unit, which handles all class “A” felonies, was appointed on May 17. At

first, Oliver told his new attorney he was opposed to waiving his right to a speedy

trial. Trial was initially set for July 14. However, on June 29, Oliver appeared in
                                             8


court for the purpose of waiving his right. Oliver’s counsel explained that he had

discussed his inability to prepare for trial and mount a full defense of Oliver within

such a short timeframe. He therefore had recommended Oliver waive his speedy

trial right. The court then discussed the waiver with Oliver:

                The Court: And before we go forward with that, Mr. Oliver,
       have you had sufficient time to think about this?
                The Defendant: Yes.
                The Court: Have you had sufficient opportunity to talk with
       [trial counsel]?
                The Defendant: Yes. I talked to him when we were—before
       we came here.
                The Court: All right. And it is your—am I correct it is your
       wish to waive the 90 days so that you don’t have to go to trial on—I
       believe it’s the 14th?
                The Defendant: Yes.
                The Court: Very well.

Trial ultimately commenced on September 8.

       Based on the facts and circumstances surrounding Oliver’s waiver, we

conclude the waiver was voluntary, knowing, and intelligent. Although Oliver

opposed waiver initially, he reasoned, after consultation with his attorney, that

additional time was necessary to fully prepare for trial and to investigate matters

Oliver wanted his attorney to investigate. At the hearing, the trial court advised

Oliver about his right, and Oliver indicated he understood the right, had fully

discussed waiver with trial counsel, and wished to waive his right. Under these

circumstances, we agree with the PCR court’s conclusion Oliver waived his right

voluntarily, knowingly, and intelligently.

       V.     Sentence

       Oliver’s final claim on appeal asserts there is a conflict between two

sentencing provisions applicable to his conviction and he should not have been
                                          9


sentenced to the life-without-parole enhancement.2          The State argues the

statutes do not conflict and, even if they do, the provisions may be harmonized.

       The State filed an amended trial information that elevated Oliver’s charges

from a class “C” felony to a class “A” felony based on Iowa Code section 902.14,

which provides:

              1. A person commits a class “A” felony if the person commits
       a second or subsequent offense involving any combination of the
       following offenses:
              a. Sexual abuse in the second degree in violation of section
       709.3.
              b. Sexual abuse in the third degree in violation of section
       709.4.
              c. Lascivious acts with a child in violation of section 709.8,
       subsection 1, paragraph “a” or “b.”

(Emphasis added). Oliver claims this section conflicts with Iowa Code section

901A.2(3), which provides:

              3. Except as otherwise provided in subsection 5, a person
       convicted of a sexually predatory offense which is a felony, who
       has a prior conviction for a sexually predatory offense, shall be
       sentenced to and shall serve twice the maximum period of
       incarceration for the offense, or twenty-five years, whichever is
       greater, notwithstanding any other provision of the Code to the
       contrary.

Iowa Code section 901A.1(1)(a) partially defines “sexually predatory offense” as

“[a] violation of any provision of chapter 709.” Oliver claims the “notwithstanding

any other provision of the Code to the contrary” language of section 901A.2(3)

supersedes section 902.14.

       Initially, we agree with the PCR court the sentencing provisions conflict in

the sense that it is conceivable that a person with multiple convictions of sexual

2
  Although this claim could have been raised on Oliver’s direct appeal, “[a] defendant
may challenge an illegal sentence at any time.” State v. Bruegger, 773 N.W.2d 862, 869
(Iowa 2009).
                                           10


abuse in the third degree, such as Oliver, could be sentenced under either

provision. In harmonizing the two provisions, we note:

       It is a fundamental rule of statutory construction that where a
       general statute, if standing alone, would include the same matter as
       a special statute and thus conflict with it, the special statute will be
       considered an exception to or a qualification of the general statute
       and will prevail over it, whether it was passed before or after such
       general enactment.

State v. Perry, 440 N.W.2d 389, 390 (Iowa 1989). While both section 902.14 and

section 901A.2(3) are specific in the sense they apply to specified offenses,

902.14 applies to a narrower category of offenses. Thus, we consider section

902.14 the more specific provision, and it prevails over conflicts with section

901A.2(3).3 See id.

       Relatedly, not only is section 902.14 applicable to a narrower category of

offenses than section 901A.2(3), Oliver’s proposed construction renders section

902.14 a nullity.    Section 902.14 applies to second or subsequent offenses

involving any combination of violations of sections 709.3, 709.4, and 709.8(1)(a)

or (b). Section 901A.2(3) applies to a “person convicted of a sexually predatory

offense which is a felony, who has a prior conviction for a sexually predatory

offense.” The code defines a “sexually predatory offense” to include any violation


3
 On Oliver’s direct appeal, our supreme court noted this as well:
               There are fewer predicate crimes that make a defendant eligible
        for an enhanced punishment under section 902.14. Unlike section
        901A.2, which includes “D” felonies and serious and aggravated
        misdemeanors as predicate offenses, the predicate offense under section
        902.14 must be a “B” or “C” felony. Compare id. § 901A.2, with §
        902.14(1). Also, only convictions and deferred judgments, as opposed to
        adjudications of delinquency, trigger section 902.14. Section 902.14 is
        not as broadly framed as 901A.2, and thus the scope of this statute
        generates less potential for gross disproportionality than section 901A.2.
        See Bruegger, 773 N.W.2d at 884.
Oliver, 812 N.W.2d at 652.
                                         11

of chapter 709. Thus, every offense that could be prosecuted pursuant to section

902.14 could also be prosecuted pursuant to section 901A.2(3).              Oliver’s

construction of the two statutes thus violates basic principles of statutory

construction:

       S]tatute[s] should be construed as to give meaning to all of them, if
       this can be done, and each statute should be afforded a field of
       operation. So, where the enactment of a series of statutes results
       in confusion and consequences which the legislature may not have
       contemplated, the courts must construe the statutes to reflect the
       obvious intent of the legislature and permit the practical application
       of the statutes.

Judicial Branch v. Iowa Dist. Court, 800 N.W.2d 569, 576–77 (Iowa 2011).

       We also agree with the district court that Iowa Code section 4.8, which

provides that the most recent statute prevails over an older statute if the statutes

are seemingly irreconcilable, also supports the application of section 902.14.

See Dan Dugan Transp. Co. v. Worth Cty., 243 N.W.2d 655, 658 (Iowa 1976)

(“Where, as here, subsequent legislation which comprehensively and specifically

treats a matter included in a prior general statute results in an ambiguity or

redundancy, the prior legislation is deemed repealed by implication.”). Because

section 901A2.(3) was enacted in 1996 and section 902.14 was enacted nine

years later, in 2005, the more recent code section prevails. Accordingly, we

conclude the enhancement under section 902.14 was properly applied to Oliver

and the PCR court did not error in rejecting this claim.
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      VI.    Conclusion

      Because we conclude Oliver has failed to show his trial counsel was

ineffective, Oliver waived his right to a speedy trial, and he was sentenced under

the proper code section, we affirm the PCR court’s denial of his application.

      AFFIRMED.
