                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1177
                              Filed August 5, 2015


KIMBERLY ANN CHIAVETTA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Nancy A.

Baumgartner, Judge.



      Kimberly Chiavetta appeals the denial of her application for postconviction

relief. AFFIRMED.




      Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Robert Hruska, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

       Kimberly Chiavetta appeals the denial of her application for postconviction

relief. She argues the district court erred in rejecting her claims that her criminal

trial attorneys were ineffective in not presenting evidence that her statement to

police was unreliable, presenting the defense that her deceased husband

injected himself with insulin and caused his own death by an overdose, and

requesting a jury instruction on voluntary manslaughter.

       “‘[W]hen the applicant asserts claims of a constitutional nature, our review

is de novo.    Thus, we review claims of ineffective assistance of counsel de

novo.’” Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (quoting Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001)).

       “[A]ll postconviction relief applicants who seek relief as a consequence of

ineffective assistance of counsel must establish counsel breached a duty and

prejudice resulted.” Castro v. State, 795 N.W.2d 789, 794 (Iowa 2011).

       The district court rejected Chiavetta’s first assertion of ineffectiveness—

that counsel failed to argue her statements to police (in which she confessed

having injected her husband with insulin) were not reliable—on grounds that her

two trial counsel had moved to suppress her statements on grounds they were

not voluntarily made. That challenge was unsuccessful in the trial court and

upheld on appeal. See State v. Chiavetta, No. 05-1911, 2007 WL 1828323,

at *3-4 (Iowa Ct. App. June 2, 2007). On direct appeal, we stated:

             Additionally, the court addressed the physician’s concerns
       about Chiavetta’s fragile mental condition, noting the physician did
       not have specific information on what, if any, drugs were still in her
       system. The court pointed out that several witnesses, including the
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       physician, testified Chiavetta was alert and oriented on the day of
       questioning.
              In addition to these factors, we note that Chiavetta’s drug
       overdose occurred two days earlier of her own volition.
       Countryman, 572 N.W.2d at 558 (“It was of her own volition that
       [the defendant] ingested any drugs affecting her.”). As soon as she
       was admitted to the hospital, Chiavetta was given charcoal to
       deactivate those drugs.
              On the day of the interview Chiavetta was taking an antidote
       to Tylenol, which was found in her system, a medication to protect
       her stomach against ulcers, a medicine to prevent blood clots, and
       an antibiotic for possible pneumonia. An anti-depressant was not
       started until the day after the interview. The record contains no
       indication that the drugs administered at the hospital caused
       confusion or lack of orientation.

Id. at *4. We are unable to discern how her present claim differs substantively

from the arguments previously rejected.

       As for her claim that trial counsel did not present a defense that her

husband injected himself, the postconviction court found that the defense

presented was reasonable “given the evidence the State had against her.” We

agree. As observed in Lamasters, 821 N.W.2d at 866,

       “[W]e measure the attorney’s performance against ‘prevailing
       professional norms.’” We start with the presumption that the
       attorney performed competently and proceed to an individualized
       fact-based analysis. “[I]neffective 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.” “Improvident trial strategy, miscalculated tactics or
       mistakes in judgment do not necessarily amount to ineffective
       counsel.” “When counsel makes a reasonable tactical decision,
       this court will not engage in second-guessing.” “Selection of the
       primary theory or theories of defense is a tactical matter.”

(Citations omitted.) Moreover, Chiavetta chose the strategy pursued—that she

administered the doses of insulin but did not intend to kill her husband.

       Finally, we, like the postconviction court, find trial counsel was not

ineffective in failing to request a voluntary manslaughter instruction because
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factually there was no evidence to support such an instruction. See Iowa Code

§ 707.4 (2003) (“A person commits voluntary manslaughter when that person

causes the death of another person, under circumstances which would otherwise

be murder, if the person causing the death acts solely as the result of sudden,

violent, and irresistible passion resulting from serious provocation sufficient to

excite such passion in a person and there is not an interval between the

provocation and the killing in which a person of ordinary reason and

temperament would regain control and suppress the impulse to kill.” (emphasis

added)); State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013) (stating “’[l]esser

offenses must be submitted to the jury as included within the charged offense if

but only if they meet both the appropriate legal and factual tests’” (citation

omitted)).

       We find no reason to disturb the district court’s comprehensive and well-

reasoned decision.      We affirm the denial of Chiavetta’s application for

postconviction relief. See Iowa Ct. R. 21.26(1)(b), (d), (e).

       AFFIRMED.
