                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1690
                            Filed November 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LISA AMY MCDONALD,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Rose Anne

Mefford, District Associate Judge.



      The defendant appeals from her conviction and sentence for assault

causing bodily injury. CONVICTION AFFIRMED; SENTENCED AFFIRMED IN

PART, VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

       Lisa McDonald appeals from her sentence and conviction for assault

causing bodily injury. McDonald maintains she received ineffective assistance

from trial counsel. Specifically, she claims counsel was ineffective for failing to

object to confusing or misleading jury instructions and for failing to ensure the

court’s response to the jury’s questions was not confusing or misleading. She

also asserts that she received an illegal sentence.

I. Background Facts and Proceedings.

       In August 2014, McDonald was charged by trial information with assault

causing bodily injury. She pled not guilty, and the matter proceeded to a trial by

jury in July 2015.

       At trial, the complaining witness testified that McDonald had been visiting

her in her home when the two of them began arguing about damage that had

occurred to McDonald’s vehicle while the witness was driving it. The witness

testified she asked McDonald to leave more than once, but rather than leaving,

McDonald “attacked me, started hitting me with her fists and got me in a

headlock and was beating on my face and stuff with her fists.” The witness

stated she was eventually able to grab McDonald’s neck, which she did in an

attempt to stop the attack. At some point, “[McDonald] finally backed off. . . . I

didn’t expect it, but she finally started backing off, and it just kind of petered out

from that point.” After McDonald left the residence, the witness called the police.

The police photographed the witness and her injuries—including bruises and

small cuts to her head, jaw, and arms—and arrested McDonald.
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         McDonald testified in her own defense.      She stated the witness was

actually the aggressor and had choked McDonald until she nearly lost

consciousness. McDonald maintained she was justified in her actions, stating:

                 I kept, you know, swinging and hoping I would hit because of
         the size difference, and, you know, I told the cop—the cop said,
         How many times did you hit [the witness]? I said, If you’re being
         choked, who is sitting there counting how many times you’re
         striking somebody to try to get out of it? You’re about blocking it
         out.

One of the arresting officers also testified.      He stated that McDonald was

arrested—rather than the complaining witness— because McDonald reported to

him that she had only hit the witness one time and that it was in self-defense.

The officer did not believe the multiple visible injuries to the witness were

consistent with McDonald’s statement.

         During its deliberation, the jury sent two questions to the judge. The jury

asked, “In the definition of ‘assault,’ should we consider who we believe started

the altercation?” and “May the jury review the actual police report?” The court

discussed its proposed responses with both parties, and neither objected. The

court then provided an answer to the jury, advising it to consider certain specific

jury instructions “together with all the instructions.”      It appears the court

transposed its answers to the jury—advising the jury to read the instruction

corresponding to question 1 as the answer to the jury’s second question and vice

versa.

         The jury found McDonald guilty as charged, and sentencing was

scheduled September 8, 2015.
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       On Monday, August 31, McDonald’s trial counsel filed a motion to

withdraw. In it, counsel indicated that he had “engaged in a series of emails with”

McDonald the previous day, “wherein it became clear there has been a severe

breakdown in communication” such that he did “not feel able to continue

representing” McDonald. Three days later, McDonald sent an email to the clerk

of court, in which she stated, among other things, “I have no objection to [my

attorney] withdrawing from my case. I do not have representative counsel but

will be fine with representing myself at my sentencing hearing.”

       The court held a hearing on the motion to withdraw on Friday, September

4. McDonald did not attend the hearing, relying on the fact that she “provided

[her] position to the court by letter.” At the hearing, McDonald’s trial attorney

again expressed his desire to withdraw, explaining:

       On August 30th we exchanged e-mails, several e-mails back and
       forth, in which the tone from the defendant grew increasingly
       aggressive to the point where she made some statements that I felt
       were personal attacks, and it led me to feel uncomfortable
       continuing to represent her, and that was why I filed the motion to
       withdraw on the 31st.

The court denied the attorney’s motion to withdraw, noting that sentencing was

scheduled for the next court day. The court also stated, “I understand there may

have been a breakdown, but I am not letting you out of the case prior to

sentencing . . . . Unless the defendant hires someone else for the sentencing,

which I haven’t seen any evidence of that. . . .”

       At sentencing on September 8, both McDonald and her attorney spoke on

her behalf, stressing the mitigating factors the court should consider. The court
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entered judgment and then sentenced McDonald to 365 days of incarceration,

which the court suspended, and one year of probation.

       On September 15, the court entered a criminal no-contact order,

preventing McDonald from having contact with the complaining witness until

September 15, 2020. McDonald appeals.

II. Standard of Review.

       We review claims of ineffective assistance de novo. State v. Straw, 709

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

       We review challenges to the legality of a sentence for correction of errors

at law. State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998).

III. Discussion.

       A. Error Preservation.

       We first consider McDonald’s claim she had a complete breakdown in

communication with counsel before sentencing, such that it was as if she was

unrepresented, in violation of her Sixth Amendment right to counsel.             She

maintains she should have been allowed to substitute counsel, and she relies on

State v. Tejeda, 677 N.W.2d 744, 749–52 (Iowa 2004) as authority.

       Unlike the defendant in Tejeda, McDonald never requested new counsel.

677 N.W.2d at 749 (finding the defendant preserved the issue by writing “two

letters to the court in support of his request,” which “sufficiently alerted the trial

court of a problem”).      She also never complained about a breakdown in

communication with counsel. Rather, it was trial counsel who filed a motion to

withdraw.   When the court held a hearing on the motion, McDonald did not

attend. Although she sent an email acquiescing to the attorney’s request to
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withdraw, she did not request new counsel, and in fact stated she would “be fine

with representing myself at my sentencing hearing.”

      McDonald took no steps to establish a breakdown in communication with

her trial attorney, and she did not request new counsel; she may not now

complain that she did not receive new counsel before her sentencing hearing.

See, e.g., State v. Boggs, 741 N.W.2d 492, 506 (Iowa 2007) (“The defendant

must show the grounds to justify substitute counsel.” (emphasis added)); Tejeda,

677 N.W.2d at 750 (“[W]e therefore now explicitly recognize there is a duty of

inquiry once a defendant requests substitute counsel on account of an alleged

breakdown in communication.” (emphasis added)); 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.”).

      B. Ineffective Assistance.

      McDonald maintains trial counsel was ineffective in failing to ensure the

jury instructions and the court’s response to the jury’s questions were not

misleading or confusing.    To prevail on a claim of ineffective assistance of

counsel, McDonald must prove by a preponderance of the evidence (1) her

attorney failed to perform an essential duty and (2) prejudice resulted from the

failure. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We look to

the cumulative effect of counsel’s alleged errors to determine whether McDonald

satisfied her burden regarding the prejudice prong. State v. Clay, 824 N.W.2d

488, 499 (Iowa 2012). Her claim fails if either element is lacking. See Everett v.

State, 789 N.W.2d 151, 159 (Iowa 2010).         Although we prefer to preserve
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ineffective-assistance claims for development of the record, see State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006), the record here is adequate for us to decide

the claims on direct appeal.

       1. Jury instructions. McDonald maintains counsel was ineffective for

failing to object to the instructions provided to the jury. She maintains they were

misleading because the jury was instructed on both specific and general intent.

       Even if trial counsel should have objected to the instructions, McDonald

cannot establish that she was prejudiced by counsel’s inaction. Here, intent was

disputed only to the extent of whether McDonald was justified in her actions.

McDonald conceded at trial that she had intended to hit or make contact with the

complaining witness, testifying:

               Yeah, trying any way I could to hit, because [the witness] is
       so much taller and stronger than me and with longer arms. You
       know, a shorter person like me, my arm reach isn’t enough. I had
       to literally jump up and kind of come over to even make a glancing
       contact. I think that’s where the contact with the forehead came
       from.

McDonald does not explain, and we do not see, how clearer instructions on

assault as a specific intent crime would have aided McDonald’s defense. See

State v. Pendleton, No. 13-1647, 2014 WL 6977188, at *5 (Iowa Ct. App. Dec.

10, 2014) (“Neither of those [fighting issues] hinged on the intent element of

assault. Clearer instructions on assault as a specific intent crime would not have

aided Pendleton’s defense.”).

       2. Response to jury questions.         Next, McDonald claims she was

prejudiced by trial counsel’s failure to object to the district court’s proposed

responses to the jury questions.     McDonald does not explain how counsel’s
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objection would likely have changed the outcome of the proceeding.             See

Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (stating a defendant has

the burden to demonstrate “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”). And while the court transposed the congruous instructions, it also

encouraged the jury to re-read all of the instructions to aid in making its

determination.

       McDonald has not established that she suffered prejudice from counsel’s

alleged error.

       C. Illegal Sentence.

       McDonald maintains, and the State concedes, the district court’s entry of

the no-contact order was in violation of Iowa Code section 664A.5 (2015).

Section 664A.5 allows the court to enter a no-contact order “for a period of five

years from the date judgment is entered.” Here, the court entered judgment on

September 8, 2015, but issued a no-contact order that was effective through

September 15, 2020.

       Because this is in error, we vacate the no-contact order and remand to the

district court for the limited purpose of entering a corrected order. A resentencing

hearing is not required. See State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995)

(“The district court may correct a clerical error in a judgment entry through

issuance of a nunc pro tunc order. An error is clerical in nature if it is not the

product of judicial reasoning and determination.” (citation omitted)).
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IV. Conclusion.

      McDonald has not established her defense was prejudiced by counsel’s

performance, so we affirm her conviction. We vacate the no-contact order and

remand for entry of a new order effective until September 8, 2020. We otherwise

affirm McDonald’s sentence.

      CONVICTION      AFFIRMED;      SENTENCED       AFFIRMED      IN   PART,

VACATED IN PART, AND REMANDED.
