                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1032
                               Filed April 15, 2020


SANTONYO SIMA PENDLETON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Santonyo Pendleton appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



      Considered by Doyle, P.J., May, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                          2


MAHAN, Senior Judge.

       Santanyo Pendleton appeals the district court’s denial of his application for

postconviction relief following his 2015 convictions of sexual abuse in the third

degree, raising claims of ineffective assistance of counsel and prosecutorial

misconduct. Upon our review, we affirm the court’s order denying Pendleton’s

application for postconviction relief.

I.     Background Facts and Proceedings

       In its opinion affirming Pendleton’s conviction on direct appeal, this court

set forth the following facts:

               On December 3, 2014, shortly before 2:00 a.m., Waterloo
       police officers responded to a 911 call regarding a nonresponsive
       woman at Pendleton’s home. Although officers and medics
       attempted resuscitation, the woman never regained consciousness
       and was later pronounced dead. An autopsy indicated the woman
       died accidentally as a result of “acute mixed drug intoxication.” At
       the time of the woman’s death, she had a blood alcohol content of
       .344 and had methamphetamine in her system. The medical
       examiner opined that either the alcohol or the methamphetamine
       could have caused her death on its own but death likely resulted from
       the combined effect of the substances.
               As part of the investigation immediately following the woman’s
       death, officers took and searched Pendleton’s cellular phones. Text
       messages on the phones corroborated Pendleton’s claim that he and
       the woman had met to engage in a consensual sexual encounter.
       However, the officers recovered three videos from Pendleton’s
       phones that were recorded in the early morning hours of December
       3, one of which showed him digitally penetrating the woman while
       she appeared to be asleep or unconscious. . . .
               . . . . In the main video, Pendleton records the woman naked
       and laying in a bed. Pendleton can be heard saying, “She’s drunk
       as hell, tripping out.” He moves her hair from her face, and the
       woman remains with her eyes shut; she does not respond. Thirty-
       nine seconds into the video, the woman can be seen opening and
       closing her mouth. Less than thirty seconds later, Pendleton begins
       digitally penetrating the woman. She does not visibly respond, and
       Pendleton narrates, “She’s drunk as hell; look at this shit.” The entire
       video lasts one minute and thirty-five seconds, and the woman never
       opens her eyes or reacts to either Pendleton’s actions or comments.
                                          3



State v. Pendleton, No. 15-1115, 2016 WL 4384653, at *1 (Iowa Ct. App. Aug. 17,

2016).

         The State charged Pendleton with sexual abuse in the third degree, in

violation of Iowa Code section 709.4(1)(d) (2015) (“A person commits sexual

abuse in the third degree when the person performs a sex act . . . [and t]he act is

performed while the other person is mentally incapacitated, physically

incapacitated, or physically helpless.”). Following trial, the jury found Pendleton

guilty as charged. Pendleton admitted he was an habitual offender. The district

court sentenced him to a term of incarceration not to exceed fifteen years, with a

three-year mandatory minimum.

         This court affirmed Pendleton’s conviction on direct appeal, rejecting his

challenges to trial counsel’s failure to request the jury be instructed on lesser-

included offenses and the limited purpose for which an interrogation video could

be considered and trial counsel’s failure to move for judgment of acquittal on the

basis the State did not prove the decedent was still alive at the time of the sex act.

See id. at *3–4. The court determined, “Because the evidence of Pendleton’s guilt

is overwhelming, Pendleton is unable to establish how counsel’s alleged failures

affected the result of the proceeding.” Id. at *3.

         Pendleton filed an application for postconviction relief (PCR), which was

amended through counsel. Following trial, the court entered an order denying

Pendleton’s application. Pendleton appealed. Facts specific to his claims on

appeal will be set forth below.
                                          4


II.    Standards of Review

       “Generally, an appeal from a denial of an application for postconviction relief

is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750

(Iowa 2016) (citation omitted). However, “ineffective-assistance-of-counsel claims

are reviewed de novo.” Id.

III.   Ineffective Assistance of Counsel

       Pendleton contends his trial counsel was ineffective in failing to call his

sister, Jalila, to testify at trial and PCR counsel was ineffective in failing to argue

Jalila’s “testimony could have advanced the consent theory of the defense that

was presented and a no-knowledge theory that should have been presented.” To

prevail on a claim of ineffective assistance of counsel, Pendleton must show

“(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” State

v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). “[C]ounsel has no duty to raise an issue that has no merit.”

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).             A claim of ineffective

assistance of counsel fails if either element is lacking. See State v. Clay, 824

N.W.2d 488, 495 (Iowa 2012).

       Jalila testified at the PCR trial. She stated she was at Pendleton’s home

when the woman arrived on the night of the incident. Jalila testified the woman

“just looked a little bit, like, off I would say. Like she wasn’t—like she was there

but she wasn’t.” According to Jalila, Pendleton and the woman walked to the store

for drinks and when they got back, they appeared to be getting along; “They were

laughing and giggling.”     Jalila stated Pendleton and the woman went into a

bedroom; the door was halfway open, and Jalila could hear them playing music,
                                           5


talking, “taking pictures,” and engaging in sexual activity. Later, Pendleton asked

Jalila for help because he thought the woman was “dead.” Jalila stated that

Pendleton’s attorney, Nichole Watt, “talked to me about what [she] saw” and told

her that she “might” be called as a witness.         Jalila also completed a written

statement about what she had seen, which she provided to Attorney Watt.

       Attorney Watt also testified at the PCR trial. She explained the defense

theory as follows:

       My defense in this case was if the girl—if the woman had not died
       and she were alive to come and testify, would she have cared that
       this happened to her. Would she have still claimed that she didn’t
       consent to it in some way since they had already had sex twice. I
       mean, would she have been happy to have this done to her if it had
       woken her up.

Attorney Watt also stated, “I did [also] try to argue that she wasn’t incapacitated,

but she was definitely snoring [in the video].” Attorney Watt explained that she

“wrote out questions for all potential witnesses in this case.” She stated she talked

to Jalila and Pendleton’s mother, but “we decided that there also was no need for

their testimony because it really had nothing to do with our defense. It was things

that they would have seen, but they didn’t add anything to our case.” Attorney

Watt testified her decision not to call Jalila to testify was a “tactical decision.” Cf.

Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (noting “strategic decisions

made after ‘thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable’” (quoting Strickland, 466 U.S. at 690–91)).

       The PCR court observed that Attorney Watt argued the act was consensual.

The PCR court rejected Pendleton’s claim with regard to Jalila’s testimony as a

tactical decision by counsel, further finding, “Her testimony per the affidavit added
                                           6


no facts not already contained in the trial record.” We agree and further conclude

that Pendleton is unable to establish Strickland prejudice.           The video from

Pendleton’s phone clearly shows the woman naked and snoring, while Pendleton

stated “she drunk as hell, trippin’ out,” “she ready for this dick,” “she drunk as hell,

look at this” as he penetrated her vagina with his fingers. While Pendleton claimed

he was “joking” and “just playing around,”1 the video speaks for itself and dispels

any question that Pendleton was not aware the woman was incapacitated or that

she consented to the sexual acts. Considering the overwhelming evidence of

Pendleton’s guilt, there is no reasonable probability of a different result had Jalila

been called to testify. Cf. State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019)

(holding defendant did not establish Strickland prejudice where there was

overwhelming evidence of guilt and the challenged testimony was merely

cumulative). We affirm on this issue.

IV.    Prosecutorial Misconduct

       Pendleton raises a claim of prosecutorial misconduct relating to the

prosecutor’s closing argument, arguing the prosecutor “misrepresented” the

statements of a physician and defense counsel during trial.                 Pendleton

acknowledges “this issue was not raised in district court proceedings or on appeal.”

Pendleton also makes a fleeting reference to PCR counsel’s failure to raise the

issue. Because this claim was not raised before or decided by the PCR court, it is

unpreserved for our review, and we decline to address it. See Lincoln v. State,


1 We observe the PCR court described Pendleton’s credibility at the PCR trial as
“laughable,” and the court further stated, “Pendleton’s claim he was looking for
cigarettes when the video clearly shows him digitally penetrating [the woman] was
a blatant disregard for the truth.”
                                        7


No. 18-0285, 2019 WL 6358303, at *2 (Iowa Ct. App. Nov. 27, 2019) (declining to

reach claim of ineffective assistance of PCR counsel that was not raised “in any

form below”); see also Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is

a fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

      Having addressed those claims properly before us on appeal, we affirm.

      AFFIRMED.
