                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0158
                            Filed September 10, 2015


JONATHAN DANIEL HILLMAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



       Jonathan Hillman appeals the district court’s order denying his application

for postconviction relief. AFFIRMED.



       Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County

Attorney, for appellee State.




       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


POTTERFIELD, J.

       Jonathan Hillman appeals the district court’s order denying his application

for postconviction relief.

       I. Factual and Procedural Background

       As a result of events occurring in early 2002, Hillman was convicted of one

count of first degree murder and one count of willful injury. The jury’s general

verdict included felony murder as a theory of liability; the willful injury served as

the underlying felony. Hillman’s trial counsel conceded Iowa law at the time of

trial permitted the felony-murder theory to be predicated upon the willful injury

charge as the underlying felony. See State v. Beeman, 315 N.W.2d 770, 777

(Iowa 1982). Trial counsel nevertheless argued Iowa law should be changed

such that the underlying felony must merge with the felony-murder charge.

However, following Hillman’s conviction, his appellate counsel declined to raise

that issue in spite of trial counsel’s preservation of the claim. This court affirmed

the convictions. See State v. Hillman, No. 03-0429, 2004 WL 1161573, at *4

(Iowa Ct. App. May 26, 2004).

       Two years later, our supreme court reversed course on its application of

the felony-murder rule in State v. Heemstra. 721 N.W.2d 549, 558 (Iowa 2006).

It held, “[I]f the act causing willful injury is the same act that causes the victim’s

death, the former is merged into the murder and therefore cannot serve as the

predicate felony for felony-murder purposes.”       Id.   Its holding was expressly

applicable prospectively and inapplicable retroactively.      Id. (“The rule of law

announced in this case regarding the use of willful injury as a predicate felony for
                                            3


felony-murder purposes shall be applicable only to the present case and those

cases not finally resolved on direct appeal . . . .”).

         Hillman applied for postconviction relief, alleging his counsel on direct

appeal was ineffective because he failed to challenge Beeman on appeal though

the claim had been preserved by trial counsel. He further claimed Heemstra

should apply retroactively, asserting our supreme court’s holding to the contrary

violates equal protection principles of the United States Constitution and due

process, equal protection, and separation of powers principles found in the Iowa

Constitution. See U.S. Const. amend. XIV; Iowa Const. art. I, §§ 6, 9, art. III,

§ 1. The district court denied the application. Hillman appeals.

         II. Standard of Review

         We review constitutional claims, including ineffective-assistance-of-

counsel claims, de novo. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010);

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

         III. Ineffective Assistance of Counsel

         “We judge ineffective assistance of appellate counsel claims against the

same two-pronged test utilized for ineffective assistance of trial counsel claims.”

Ledezma, 626 N.W.2d at 141. “[W]e ask whether [appellate] counsel breached

an essential duty and whether prejudice resulted from any such breach.” State v.

Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). Failure to prove either prong is fatal to

an ineffective-assistance claim. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa

2003).     We begin by presuming counsel performed competently.           State v.

Dudley, 766 N.W.2d 606, 620 (Iowa 2009). Counsel need not be able to predict

future changes in the law but must “exercise reasonable diligence in deciding
                                         4

whether an issue is worth raising.” State v. Westeen, 591 N.W.2d 203, 210

(Iowa 1999) (internal quotation marks omitted).

       We conclude appellate counsel performed competently in representing

Hillman on appeal. Counsel testified at the postconviction hearing he was aware

the merger issued had been raised on appeal in many other cases but the

appellate courts had remained firm in applying Beeman. Indeed, Beeman had

been the law of the land for over twenty years at the time of Hillman’s direct

appeal. Our supreme court consistently applied the Beeman rule throughout that

period. See State v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); State v.

Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994); State v. Ragland, 420 N.W.2d

791, 793 (Iowa 1988); State v. Mayberry, 411 N.W.2d 677, 682–83 (Iowa 1987).

Appellate counsel testified he had no specific recollection of the state of the trial

record on the merger issue,1 but he did recall that he did not raise the issue on

appeal. He testified his practice was to narrow the issues to be raised on appeal

to those issues he thought had the most merit. He testified he and many of his

fellow practitioners had “give[n] up” on challenging Beeman since “it had been

tried so many times and failed so many times.”

       We find counsel’s testimony regarding his appellate strategy credible, and

nothing in the record overcomes our presumption that he performed competently.

Based on the state of the law at the time of Hillman’s appeal, reasonable

appellate counsel could have concluded another challenge to Beeman would be

meritless and would distract from other, more meritorious claims on appeal.


1
  The postconviction hearing took place more than ten years after Hillman’s direct
appeal.
                                              5


Hillman has failed to show his appellate counsel breached an essential duty, and

we therefore affirm the district court’s order denying Hillman’s ineffective-

assistance claim.

       IV. Retroactivity of Heemstra

       We next consider Hillman’s assertion that our supreme court’s non-

retroactive application of Heemstra violates constitutional principles.2 Hillman

raises arguments relating to due process under the Iowa Constitution, 3 the

separation of powers principles in the Iowa Constitution,4 and equal protection

under both the state5 and federal6 constitutions. Hillman claims our supreme

court’s decision in Nguyen v. State leaves open the possibility that one of these

bases mandates the retroactive application of Heemstra. Nguyen v. State, 829

N.W.2d 183, 189 (Iowa 2013).

       It is not within the province of this court to overrule our supreme court’s

directive to apply Heemstra exclusively in a prospective manner. See State v.

Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be



2
  The State asks us to affirm the district court because Hillman’s Heemstra claims are
barred by the statute of limitations. See Iowa Code § 822.3 (2013). However, the State
only raised that claim before the district court in its resistance to Hillman’s motion to
amend. The State has not cross-appealed to challenge or assert error in the district
court’s order granting Hillman leave to amend, and we therefore do not consider whether
the motion was properly granted.
3
  “[N]o person shall be deprived of life, liberty, or property, without due process of law.”
Iowa Const. art. I, § 9.
4
   “The powers of the government of Iowa shall be divided into three separate
departments—the Legislative, the Executive, and the Judicial: and no person charged
with the exercise of powers properly belonging to one of these departments shall
exercise any function appertaining to either of the others . . . .” Iowa Const. art. 3, § 1.
5
  “All laws of a general nature shall have a uniform operation; the General Assembly
shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon
the same terms shall not equally belong to all citizens.” Iowa Const. art. 1, § 6.
6
  “No State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. IV, § 1.
                                          6


overruled, we should ordinarily prefer to do it ourselves.”). We instead apply

“existing legal principles.” See Iowa R. App. P. 6.1101(3).

       First, as to the state due process claim, Hillman asks this court to interpret

the Iowa Constitution to provide greater protections than the federal constitution.

We acknowledge our supreme court has done so in other matters. See, e.g.,

Gaskins, 866 N.W.2d at 7–8. However, it is “generally deemed the federal and

state due process clauses [are] identical in scope, import, and purpose.” State v.

Nail, 743 N.W.2d 535, 539 (Iowa 2007). Though Hillman advocates for a distinct

construction of due process under the Iowa Constitution in this context, we

conclude we must defer to our supreme court’s decision in Goosman, which held

prospective application of Heemstra comports with due process. Goosman v.

State, 764 N.W.2d 539, 545 (Iowa 2009).

       Second, Hillman claims the separation of powers clause of the Iowa

Constitution requires retroactive application of Heemstra.           He claims that

between Beeman and Heemstra—from 1982 to 2006—our supreme court had

usurped the legislature’s role in defining criminal acts by assigning its own

definition to the felony-murder statute in contravention of the legislature’s intent.

       However, the Heemstra decision itself considered the legislature’s intent.

See Heemstra, 721 N.W.2d at 557–58.              Our supreme court noted, “The

legislature has never considered the issue of whether, when the act causing

willful injury is the same as that causing death, the two acts should be deemed

merged.” Id. at 557. There was no asserted legislative intent derived from the
                                           7


record,7 so our supreme court could not have abrogated any such intent. The

court held the decision as to the issue of merger “is a legal principle that is the

responsibility of the court and within the power of the court to apply.” Id. at 558.

       Additionally, our supreme court has held the separation of powers doctrine

found in the Iowa Constitution is not to be drawn rigidly and some functions of

each branch will inevitably overlap into those of another. See State v. Ragland,

836 N.W.2d 107, 117–18 (Iowa 2013). Neither Beeman nor Heemstra violated

the separation of powers clause of the Iowa Constitution.

       Lastly, we consider Hillman’s claim that Heemstra’s prospective-only

application violates equal protection principles. Both the federal and state equal

protection clauses require all similarly-situated persons to be treated alike. See

Varnum v. Brien, 763 N.W.2d 862, 878 (Iowa 2009).

       Hillman argues pre-Heemstra and post-Heemstra defendants are not

treated alike by the law. He fails to appreciate that pre-Heemstra and post-

Heemstra defendants are not similarly situated. Our supreme court and the U.S.

Supreme Court have both upheld classifications of litigants based on the status

of their case—i.e., whether a litigant’s direct appeal was made final before or

after—a change in the law. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987);

Everett v. Brewer, 215 N.W.2d 244, 247 (Iowa 1974) (“[T]here is a rational




7
  Heemstra expressly dealt with a side effect of Beeman that the legislature had likely
not intended rather than dealing with what the legislature did intend. “The legislature
can, unintentionally, expand the felony murder doctrine by creating new criminal statutes
that are felonious assaults. . . . [T]he application of Beeman creates an ever-expanding
felony murder rule. It is doubtful the legislature ever intended such a result . . . .”
Heemstra, 721 N.W.2d at 555 (quoting 4 Robert R. Rigg, Iowa Practice Criminal Law (I)
§ 3:16 (2006)) (emphasis added).
                                            8


basis[8] for classifying appellants in accordance with whether their claim

previously has been fully considered and adjudicated.”).

       Hillman also argues “Iowa collateral review applicants relying on

substantive rule[s] articulated by [the] Iowa Supreme Court and those relying on

substantive rule[s] articulated by [the] United States Supreme Court” are not

treated alike because different retroactivity rules apply in each of those courts.

He cites no authority for the proposition that this results in an equal protection

violation.   It is self-evident that appellants relying on substantive rulings on

federal law issued by the U.S. Supreme Court are not similarly situated to

appellants relying on substantive rulings on state law issued by the Iowa

Supreme Court.       Such appellants are naturally treated differently because

different laws are applicable to their claims. We reject Hillman’s equal protection

claims as to both the federal and state constitutions.

       V. Conclusion

       Hillman has failed to show his appellate counsel breached an essential

duty, and his ineffective-assistance claim therefore fails. He has not persuaded

us that the prospective-only application of Heemstra violates equal protection

under the U.S. Constitution or violates equal protection, due process, or

separation of powers under the Iowa Constitution. We affirm.

       AFFIRMED.




8
  Hillman claims we should apply strict scrutiny rather than rational basis to his equal
protection claim, but his only citation to authority for this proposition does not support
that assertion. See State v. Hernanez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002)
(applying strict scrutiny to restriction on appellant’s substantive due process—not equal
protection—right). We decline to apply strict scrutiny.
