IN THE COURT OF APPEALS OF IOWA
No. 18-1466 Filed January 23, 2020
CHARLES DEAN WHITE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Page County, Susan Christensen,
Judge.
Charles White appeals the denial of his application for postconviction relief.
AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
CARR, Senior Judge.
Charles White appeals the denial of his application seeking postconviction
relief (PCR). He contends his trial counsel was ineffective by failing to impeach
the complaining witness at trial using inconsistent statements she made during her
deposition. White also contends the decision to limit the PCR hearing to that one
issue resulted from error by the PCR court and ineffective assistance of his PCR
counsel.
I. Background Facts and Proceedings.
In 2012, White was convicted of three counts of second-degree sexual
abuse and one count of lascivious acts with a child. On direct appeal, White
alleged his trial counsel was ineffective by failing to object to identical charges and
marshaling instructions on the counts of sexual abuse and by failing to object to
the State’s closing argument. This court rejected both claims of ineffective
assistance and affirmed his convictions. See State v. White, No. 12-1256, 2013
WL 4504896, at *3-5 (Iowa Ct. App. Aug. 21, 2013).
In 2014, White filed a PCR application alleging various claims of ineffective
assistance of counsel. The State moved for summary judgment, which the PCR
court granted. The court determined that all but one of White’s PCR claims were
barred because either (1) this court decided the issues on direct appeal or (2)
White failed to provide a reason for failing to raise them on direct appeal. White
claimed his trial counsel was ineffective by failing to impeach the complaining
witness with her deposition testimony, and his appellate counsel’s ineffectiveness
in pursuing this issue provided sufficient reason for his failure to raise the claim on
direct appeal. But on that issue, the PCR court found White could not show 3
prejudice because the deposition only revealed minor inconsistencies, which could
not overcome the complaining witness’s detailed descriptions of abuse, which was
corroborated by multiple witnesses and the medical evidence.
White appealed the summary judgment ruling. He argued summary
judgment was inappropriate because genuine issues of material fact existed,
focusing his argument on the impeachment issue and asserting his right to depose
trial and appellate counsel on that issue. The State conceded that the deposition
contained “possible impeachment testimony” but argued White could not prevail
on the claim given the strength of the evidence against him. This court rejected
the State’s argument, finding the conclusion was premature:
We do not have the child’s deposition in evidence. Nor does criminal trial counsel’s affidavit address the contents of the deposition. While further inquiry may establish trial counsel’s decisions were a reasonable strategy or there was no prejudice, the State has failed to carry its burden to prove there is no genuine issue of fact for trial.
White v. State, No. 15-1492, 2016 WL 4054000, at *2 (Iowa Ct. App. July 27,
2016). On this basis, we reversed the summary judgment ruling and remanded
for further proceedings. Id.
The PCR court held a trial on the merits after remand. The only issue
addressed during the trial and in the court’s ruling was whether trial counsel was
ineffective for failing to impeach the complaining witness with her deposition
testimony. The PCR court found that White failed to show his trial counsel was
ineffective on this basis and denied PCR.
II. Scope and Standard of Review.
We review the denial of a PCR application for correction of errors at law.
See Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). If the trial court’s fact 4
findings are supported by substantial evidence and it correctly applied the law, we
affirm. See id. But when a PCR applicant alleges constitutional error such as
ineffective assistance of counsel, our review is de novo. See id. We review the
totality of the circumstances and the record on which the PCR court made its ruling.
See id.
III. Impeachment.
White first contends the PCR court erred in denying his PCR application
because his trial counsel was ineffective in failing to impeach the complaining
witness with her deposition testimony. To prevail on a claim of ineffective
assistance of counsel, a defendant must show that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. See Linn v. State, 929 N.W.2d 717,
730 (Iowa 2019). In assessing counsel’s performance, we measure it objectively
under the prevailing professional norms to determine whether counsel acted
competently. See id. at 731. To establish prejudice, a defendant must show a
substantial probability that the result of the proceeding would have been different
if counsel had performed competently. See id. We may affirm if either element is
lacking. See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012).
The PCR court determined that the decision to refrain from impeaching the
complaining witness directly with her deposition was a tactical one, not deficient
performance by trial counsel. Trial counsel testified that he did not think it was
necessary to use the deposition to impeach the complaining witness directly
because the inconsistencies in her version of events were obvious from her
testimony and the testimony of other witnesses. So rather than “getting technical 5
and pulling out a deposition and showing that she had changed her story,” trial
counsel used other means to question her about those inconsistencies.
We agree that counsel made a reasonable tactical decision to refrain from
directly impeaching the complaining witness with her deposition. We will not
second guess a reasonable tactical decision even though it does not succeed. See
Lamasters, 821 N.W.2d at 866 . Because White has failed to show counsel
performed below the standard of a competent practitioner, we affirm the denial of
PCR on this ground.
IV. Other Claims.
The PCR court’s ruling addressed no other ineffective-assistance claims
that White raised in his PCR application. It appears the parties believed that our
appellate decision reversed the summary judgment ruling only on the
impeachment issue. Thus, White’s PCR counsel did not present any evidence or
argument on the other claims at the PCR trial. For the first time on appeal, White
argues the PCR court erred by limiting the proceeding and its ruling to the
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IN THE COURT OF APPEALS OF IOWA
No. 18-1466 Filed January 23, 2020
CHARLES DEAN WHITE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Page County, Susan Christensen,
Judge.
Charles White appeals the denial of his application for postconviction relief.
AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
CARR, Senior Judge.
Charles White appeals the denial of his application seeking postconviction
relief (PCR). He contends his trial counsel was ineffective by failing to impeach
the complaining witness at trial using inconsistent statements she made during her
deposition. White also contends the decision to limit the PCR hearing to that one
issue resulted from error by the PCR court and ineffective assistance of his PCR
counsel.
I. Background Facts and Proceedings.
In 2012, White was convicted of three counts of second-degree sexual
abuse and one count of lascivious acts with a child. On direct appeal, White
alleged his trial counsel was ineffective by failing to object to identical charges and
marshaling instructions on the counts of sexual abuse and by failing to object to
the State’s closing argument. This court rejected both claims of ineffective
assistance and affirmed his convictions. See State v. White, No. 12-1256, 2013
WL 4504896, at *3-5 (Iowa Ct. App. Aug. 21, 2013).
In 2014, White filed a PCR application alleging various claims of ineffective
assistance of counsel. The State moved for summary judgment, which the PCR
court granted. The court determined that all but one of White’s PCR claims were
barred because either (1) this court decided the issues on direct appeal or (2)
White failed to provide a reason for failing to raise them on direct appeal. White
claimed his trial counsel was ineffective by failing to impeach the complaining
witness with her deposition testimony, and his appellate counsel’s ineffectiveness
in pursuing this issue provided sufficient reason for his failure to raise the claim on
direct appeal. But on that issue, the PCR court found White could not show 3
prejudice because the deposition only revealed minor inconsistencies, which could
not overcome the complaining witness’s detailed descriptions of abuse, which was
corroborated by multiple witnesses and the medical evidence.
White appealed the summary judgment ruling. He argued summary
judgment was inappropriate because genuine issues of material fact existed,
focusing his argument on the impeachment issue and asserting his right to depose
trial and appellate counsel on that issue. The State conceded that the deposition
contained “possible impeachment testimony” but argued White could not prevail
on the claim given the strength of the evidence against him. This court rejected
the State’s argument, finding the conclusion was premature:
We do not have the child’s deposition in evidence. Nor does criminal trial counsel’s affidavit address the contents of the deposition. While further inquiry may establish trial counsel’s decisions were a reasonable strategy or there was no prejudice, the State has failed to carry its burden to prove there is no genuine issue of fact for trial.
White v. State, No. 15-1492, 2016 WL 4054000, at *2 (Iowa Ct. App. July 27,
2016). On this basis, we reversed the summary judgment ruling and remanded
for further proceedings. Id.
The PCR court held a trial on the merits after remand. The only issue
addressed during the trial and in the court’s ruling was whether trial counsel was
ineffective for failing to impeach the complaining witness with her deposition
testimony. The PCR court found that White failed to show his trial counsel was
ineffective on this basis and denied PCR.
II. Scope and Standard of Review.
We review the denial of a PCR application for correction of errors at law.
See Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). If the trial court’s fact 4
findings are supported by substantial evidence and it correctly applied the law, we
affirm. See id. But when a PCR applicant alleges constitutional error such as
ineffective assistance of counsel, our review is de novo. See id. We review the
totality of the circumstances and the record on which the PCR court made its ruling.
See id.
III. Impeachment.
White first contends the PCR court erred in denying his PCR application
because his trial counsel was ineffective in failing to impeach the complaining
witness with her deposition testimony. To prevail on a claim of ineffective
assistance of counsel, a defendant must show that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. See Linn v. State, 929 N.W.2d 717,
730 (Iowa 2019). In assessing counsel’s performance, we measure it objectively
under the prevailing professional norms to determine whether counsel acted
competently. See id. at 731. To establish prejudice, a defendant must show a
substantial probability that the result of the proceeding would have been different
if counsel had performed competently. See id. We may affirm if either element is
lacking. See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012).
The PCR court determined that the decision to refrain from impeaching the
complaining witness directly with her deposition was a tactical one, not deficient
performance by trial counsel. Trial counsel testified that he did not think it was
necessary to use the deposition to impeach the complaining witness directly
because the inconsistencies in her version of events were obvious from her
testimony and the testimony of other witnesses. So rather than “getting technical 5
and pulling out a deposition and showing that she had changed her story,” trial
counsel used other means to question her about those inconsistencies.
We agree that counsel made a reasonable tactical decision to refrain from
directly impeaching the complaining witness with her deposition. We will not
second guess a reasonable tactical decision even though it does not succeed. See
Lamasters, 821 N.W.2d at 866 . Because White has failed to show counsel
performed below the standard of a competent practitioner, we affirm the denial of
PCR on this ground.
IV. Other Claims.
The PCR court’s ruling addressed no other ineffective-assistance claims
that White raised in his PCR application. It appears the parties believed that our
appellate decision reversed the summary judgment ruling only on the
impeachment issue. Thus, White’s PCR counsel did not present any evidence or
argument on the other claims at the PCR trial. For the first time on appeal, White
argues the PCR court erred by limiting the proceeding and its ruling to the
impeachment issue.
To preserve error on an issue, a party must raise it in the district court and
the district court must decide it. See id. at 862. If a party raises an issue and the
district court fails to rule on it, the party must file a motion requesting a ruling to
preserve the issue for appeal. See id. White did not argue the other ineffective-
assistance claims at his PCR trial and failed to request a ruling on them. As a
result, he cannot challenge the lack of a ruling on his other PCR claims for the first
time on appeal. 6
White also alleges his PCR counsel was ineffective by failing to litigate or
make a record on his other claims of ineffective assistance of counsel that he
raised in his PCR application. But there is nothing in the record to explain PCR
counsel’s actions. And, as White concedes, “[w]hether or not any of these claims
would be successful is unclear.” Because the record is inadequate to allow us to
decide whether counsel breached a duty and whether prejudice resulted, we
cannot resolve this new claim on appeal. See Goode v. State, 920 N.W.2d 520,
526 (Iowa 2018) (declining to address new claim of ineffective assistance of PCR
counsel raised for the first time on appeal when the parties conceded the record
was inadequate).