                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0873
                              Filed June 11, 2014


DEREK O. DEAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      Derek Dean appeals from the district court’s denial of his application for

postconviction relief asserting his trial counsel was ineffective. AFFIRMED.




      Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Michael J. Walton, County Attorney, and Dion Trowers, Assistant

County Attorney, for appellee State.




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


DOYLE, J.

         Derek Dean appeals the district court’s denial of his application for

postconviction relief (PCR). Dean was convicted of five counts of robbery in the

first degree following a jury trial. He filed a pro se PCR application alleging,

among other things, ineffective assistance of counsel. Amended applications

were later filed. After a hearing, the district court denied Dean’s application on all

grounds. On appeal, Dean asserts the district court erred in denying his claims

trial counsel was ineffective based on trial counsel’s failure to allow Dean to

testify at trial and in failing to request a jury instruction on “accessory after the

fact.”

         We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012).           To prevail on his ineffective-

assistance-of-counsel claims, Dean must show (1) counsel failed to perform an

essential duty and (2) prejudice resulted. See id. The first prong requires proof

that counsel did not act as a “reasonably competent practitioner” would have

acted. See State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006). We presume

the attorney performed competently and avoid second-guessing and hindsight.

See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). “Miscalculated trial

strategies and mere mistakes in judgment normally do not rise to the level of

ineffective assistance of counsel.” Id. Additionally, “[c]ounsel has no duty to

raise an issue that has no merit.” State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010). To show prejudice under the second prong, a defendant must show a

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

the proceeding would have been different. See Ennenga, 812 N.W.2d at 701. A
                                             3


reasonable probability is one “sufficient to undermine confidence in the outcome.”

See Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). A reviewing court need

not engage in both prongs of the analysis if one is lacking. Id. at 159.

       With regard to the jury instruction issue, we agree with the State that Dean

cannot succeed on this claim, as he has not shown he would have been entitled

to such an instruction.1 “A defendant is ordinarily entitled to a theory of defense

instruction if he or she makes a timely request, the request is supported by

evidence, and the request sets out a correct declaration of the law.” State v.

Johnson, 534 N.W.2d 118, 124 (Iowa Ct. App. 1995). However, when, as here,

the State does not charge the defendant with accessory after the fact, an

instruction on the theory does not set forth an applicable rule of law. See id. In

addition, the requested instruction “must set forth facts which would be

incompatible with one or more essential elements of the crime charged.”                  Id.

Here, Dean does not suggest any particular language for the instruction or point

to any facts that precluded a finding of guilt on the robbery charges. Even if an

accessory after the fact instruction had been given, the jury still could have found

Dean guilty of aiding and abetting in the robberies. See State v. Perry, 440

N.W.2d 389, 391-92 (Iowa 1989) (noting that when a defendant’s actions can

conceivably violate more than one criminal statute, the prosecutor has the sole

1
  There was only a brief discussion of the accessory after the fact instruction issue at the
PCR hearing. The district court’s ruling does not mention or rule on the issue, and Dean
failed to file a rule 1.904(2) motion requesting the court to enlarge its findings and
conclusions. See Iowa R. Civ. P. 1.904(2). Insofar as Dean raises this claim in the
guise of an ineffective-assistance-of-counsel claim alleging counsel was ineffective in
failing to raise the issue—and in an effort to stave off another PCR proceeding—we
address Dean’s claim despite its error preservation concerns. See Fountain, 786
N.W.2d at 263 (“Ineffective-assistance-of-counsel claims are an exception to the
traditional error-preservation rules.”); see also State v. Taylor, 596 N.W.2d 55, 56 (Iowa
1999).
                                           4


discretion in determining which charge to file). Lastly, we also note that the crime

of being an accessory after the fact is not a lesser-included offense of robbery.

State v. Sanders, 280 N.W.2d 375, 377 (Iowa 1979). The court would have had

no duty to give the instruction, even if requested.       Under the circumstances,

Dean cannot establish that his trial counsel was ineffective for failing to request

an accessory after the fact instruction.

       We next turn to the claim Dean’s trial counsel was ineffective for failing to

allow Dean to testify. After perceptively analyzing the circumstances, trial court

concluded:

       [Dean’s trial counsel] testified credibly that he always explains to
       defendants that it is their constitutional right to testify if they chose
       to do so. This is a decision that can only be made by the client, not
       by [Dean’s trial counsel]. Therefore, [Dean’s trial counsel] clearly
       did not “fail to allow [Dean] to testify.” Moreover, for the reasons
       explained by [Dean’s trial counsel], it would have been a very bad
       idea for Dean to have testified. Dean denied to the police that he
       had been driving Brown around and rather stated he had been to
       his aunt’s home. Had Dean testified, he would have been
       impeached based on his prior inconsistent statements to the police.

The trial court’s decision of this issue was thorough and well-reasoned. Upon

our de novo review of the record, we agree with the trial court’s conclusion that

the claim had no merit and we therefore affirm without further opinion pursuant to

Iowa Rule of Appellate Procedure 6.1203(a) and (d).

       Because Dean’s claims of ineffective assistance of trial counsel fail, the

district court properly denied his application for PCR. Consequently, we affirm

the district court’s ruling denying Dean’s PCR application.

       AFFIRMED.
