                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0716
                               Filed May 13, 2020


JAMES HOLS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Mahaska County, Shawn Showers,

Judge.



       James Hols appeals the denial of his application for postconviction relief.

AFFIRMED.



       Ryan J. Mitchell of Orsborn, Mitchell, Goedken & Larson, P.C., Ottumwa,

for appellant.

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



       Considered by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.

       In 2010, a jury found James Hols guilty of domestic abuse assault. Because

it was Hols’s third conviction for such an offense, the charge was enhanced to a

class “D” felony. See Iowa Code § 708.2A(4) (2010). Also, since Hols had two

prior felony convictions, Hols was subject to sentencing enhancements as a

habitual offender. Id. §§ 902.8, 902.9(3). In addition to the domestic abuse assault

charge, Hols was also charged with willful injury causing bodily injury, a class “D”

felony. Id. § 708.4(2). The jury found Hols guilty of the lesser-included offense of

assault causing bodily injury, a serious misdemeanor.          Id. § 708.2(2).   The

sentencing court merged the charge of assault causing bodily injury with the

sentence for domestic abuse assault and entered no separate sentence for the

assault causing bodily injury charge.1 Hols was sentenced to an indeterminate

term of incarceration not to exceed fifteen years with a minimum sentence of three

years. In a direct appeal raising issues unrelated to the issues in this case, Hols’s

conviction was affirmed. State v. Hols, No. 10-1841, 2013 WL 750307, at *3 (Iowa

Ct. App. Feb. 27, 2013).

       Hols initiated these postconviction-relief (PCR) proceedings claiming

ineffective assistance of counsel. Following a trial on the merits, the district court

denied Hols’s application. Hols appeals.




1 Although the charge of assault causing bodily injury includes an element that
domestic abuse assault does not, specifically the element of bodily injury, the State
did not seek review of the sentencing court's decision to merge the two offenses.
Therefore, we do not address any issue pertaining to merger.
                                         3


      I.     Standard of Review and Legal Standards.

      “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, because ineffective-assistance-of-

counsel claims are based on the constitutional guarantees of the effective

assistance of counsel found in the Sixth Amendment of the U.S. Constitution and

article I, section 10 of the Iowa Constitution, such claims are reviewed de novo.

Id.

      To prevail on a claim of ineffective assistance of counsel, Hols must make

two showings: (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). “[Hols] has the burden of proof to establish by a preponderance of the

evidence that counsel rendered ineffective assistance.”       State v. Aldape, 307

N.W.2d 32, 42 (Iowa 1981).

      A fair assessment of attorney performance requires that every effort
      be made to eliminate the distorting effects of hindsight, to reconstruct
      the circumstances of counsel’s challenged conduct, and to evaluate
      the conduct from counsel’s perspective at the time. Because of the
      difficulties inherent in making the evaluation, a court must indulge a
      strong presumption that counsel’s conduct falls within the wide range
      of reasonable professional assistance; that is, the defendant must
      overcome the presumption that, under the circumstances, the
      challenged action “might be considered sound trial strategy.”

Strickland, 466 U.S. at 689 (citation omitted). “[Hols] must show that there is a

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

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. “The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to
                                             4


dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.” Id. at 697.

“Courts should strive to ensure that ineffectiveness claims not become so

burdensome to defense counsel that the entire criminal justice system suffers as

a result.” Id.

       II.       Discussion.

       Hols claims his trial counsel was ineffective in the following ways:

       (1)       failing to depose opposing witnesses;

       (2)       eliciting testimony from the complaining witness that Hols is a sex

offender and not requesting a curative instruction or a mistrial;

       (3)       asking    open-ended     questions on    cross-examination     of   the

complaining witness that resulted in her repeating her allegations;

       (4)       failing to properly challenge the sufficiency of the evidence in making

a motion for judgment of acquittal on the willful injury charge;

       (5)       failing to secure the attendance of and call defense witnesses; and

       (6)       failing to call Hols as a witness.

                 A.       Failing to Depose Witnesses.

       Trial counsel deposed the complaining witness but did not depose the

remaining two witnesses disclosed by the State, both of whom were law-

enforcement officers. Hols did not meet his burden to establish either prong of this

claim of ineffectiveness. Trial counsel had the reports prepared by both witnesses

prior to trial. Trial counsel had prior experience with both witnesses and from that

experience believed both witnesses would not stray from their written reports. This

belief turned out to be accurate, as neither witness strayed significantly from the
                                         5


details of the reports while testifying. Under these circumstances, trial counsel did

not breach any duty by failing to depose the witnesses and there was no prejudice

to Hols, as there is no reason to believe the outcome of the trial would have been

any different if he had. In fact, other than an unsupported statement that he was

prejudiced, Hols presents no argument or description of how he was prejudiced.

See State v. Tate, 710 N.W.2d 237, 241 (Iowa 2006) (“‘[C]onclusory claims of

prejudice’ are not sufficient to satisfy the prejudice element.” (quoting State v.

Myers, 653 N.W.2d 574, 579 (Iowa 2002)).

              B.     Sex Offender Testimony.

       While Hols’s trial counsel was cross-examining the complaining witness, the

following exchange took place:

              Q. Now you said your cousin and his wife . . . have
       guardianship of your child? A. Yes.
              Q. And why is that? A. Because I was with another guy that
       is a registered sex offender, as well as Mr. Hols is.

       Hols asserts asking an open-ended question that allowed the witness to

volunteer the sex offender information constituted ineffective assistance of

counsel. He also asserts counsel was ineffective for failing to move to strike the

answer, ask for a curative instruction, or ask for a mistrial. During the PCR trial,

Hols’s trial counsel expressed the opinion that he should have objected or asked

for a curative instruction after the witness blurted out the reference to Hols being

a sex offender. The district court found asking an open-ended question was not a

breach of duty but counsel’s failure to object or ask for a curative instruction was

a breach of duty. However, the district court found a lack of showing of prejudice

as a result of the breach of duty.
                                          6


       We agree the question itself did not breach any duty. We question the

district court’s conclusion there was a breach of duty by failing to object or ask for

a curative instruction. Trial counsel was never asked if there was a strategic

reason for failing to do so even though there are strategic considerations apparent

from the context. Trial counsel may have wanted to avoid calling further attention

to the stray comment, hoping the volunteered and nonresponsive comment—

which could be perceived by jurors as spiteful—did not shed the complaining

witness in a very favorable light. However, we do not need to decide whether Hols

met his burden to show a breach of duty, as his claim fails on the prejudice prong.

Even if trial counsel objected and received a curative instruction, it would not have

changed the outcome in light of the evidence that Hols admitted to law

enforcement officers to having dragged the complaining witness up the stairs by

her belt or hair and the officers observed corroborating injuries on the victim.

              C.     Open-Ended Cross-Examination Questions.

       Trial counsel’s strategy of asking open-ended questions on cross-

examination to get the complaining witness to repeat her story in the hope of

finding inconsistencies was not a breach of counsel’s duty and was not prejudicial.

Hols did not meet his burden of showing this was an unreasonable trial strategy,

and a reasonable trial strategy does not amount to ineffective assistance of

counsel merely because it was unsuccessful. See Osborn v. State, 573 N.W.2d

917, 922 (Iowa 1998) (“Improvident trial strategy, miscalculated tactics, or

mistakes in judgment do not necessarily amount to ineffective assistance of

counsel.   The petitioner must overcome a strong presumption of counsel’s
                                          7


competence, and a postconviction applicant has the burden to prove by a

preponderance of the evidence that counsel was ineffective.” (citations omitted)).

       In addition to there being no breach of duty, there was no prejudice. We

echo the district court’s comments on this issue:

       [T]he result would not have changed had trial counsel conducted
       brilliant cross[-]examination that would bring a tear to Professor
       Younger’s eye.2 When a criminal defendant tells law enforcement
       that he drug another individual up the stairs, the assault conviction
       becomes a virtual certainty.

              D.     Challenge to Sufficiency of Evidence.

       Hols asserts trial counsel was ineffective for failing to specifically challenge

the sufficiency of the evidence supporting the “intent to cause serious injury”

element of the willful injury charge while making a motion for judgment of acquittal. 3

This claim fails for two reasons. First, there was no breach of duty because a

specific motion raising that issue would have been denied given the evidence that

Hols stabbed the complaining witness with a fountain pen. Even though serious

injury did not result, a reasonable juror could have concluded Hols had the intent

to cause serious injury. Second, there was no prejudice because the jury found

Hols not guilty of willful injury, which is the only crime for which intent to cause

serious injury was an element. Since Hols got the same result on that charge as




2 Hols’s PCR counsel submitted as an exhibit an article from a periodical
discussing Professor Irving Younger’s Ten Commandments of Cross-Examination.
The court admitted the article over the State’s objection.
3 Throughout Hols’s brief, reference is made to a motion for directed verdict. We

will assume counsel intended to reference a motion for judgment of acquittal
pursuant to Iowa Rule of Criminal Procedure 2.19(8) rather than its civil
counterpart, a motion for directed verdict.
                                         8


he would have achieved had the motion been made and granted, there is, by

definition, no prejudice.

              E.     Failing to Secure and Call Defense Witnesses.

       Hols claims trial counsel was ineffective because he failed to present two

defense witnesses and failed to seek a continuance once one of those witnesses

was unable to be served with a subpoena. We need not address whether trial

counsel breached his duty, as Hols failed to meet his burden to show prejudice.

We note that neither of the two proposed defense witnesses testified at the PCR

trial, so we are left with nothing more than speculation as to what they knew or the

details to which they could have testified at the criminal trial. It is completely

unclear what one of the potential defense witnesses knew, so failure to call that

witness did not prejudice Hols. Hols claims the other witness was at the house

where the assault occurred, heard the argument between Hols and the

complaining witness, may have testified that she did not see any injuries on the

complaining witness after the argument, and may have testified the complaining

witness had the opportunity to report the assault immediately but chose not to.

Even if Hols’s speculation as to the second witness’s testimony was accepted as

accurate, it would not have changed the outcome. Her testimony would have

corroborated the fact there was a dispute and would not have rebutted the fact

Hols admitted to having dragged the complaining witness up the stairs during the

argument. Even if that witness testified that she saw no injuries on the complaining

witness after the altercation, it would not have changed the outcome for Hols, as

injury was only an element of the assault causing bodily injury charge, which had
                                          9


no adverse effect on Hols since it was merged into the domestic abuse assault

conviction.

               F.    Failing to Call Hols as a Witness.

       Hols also asserts trial counsel was ineffective for failing to call Hols as a

witness. He further asserts trial counsel was ineffective for failing to file a motion

in limine to limit impeachment of Hols with his criminal history in the event Hols did

testify. Although these claims are of dubious merit on the breach prong, we need

not decide whether they constituted a breach of trial counsel’s duty, as Hols fails

on the prejudice prong. Conspicuously absent from Hols’s testimony at the PCR

trial was any information as to what Hols would have testified to or how his

testimony would have helped his case. Given Hols admitted to law enforcement

he dragged the complaining witness up the stairs coupled with him providing no

information as to how his testimony would have challenged the State’s evidence,

Hols failed to meet his burden to establish the outcome would have been different

if Hols testified.

       III.    Conclusion.

       Finding no merit to any of Hols’s claims of ineffective assistance of counsel,

we affirm the district court’s dismissal of his PCR application.

       AFFIRMED.
