Fullenwider v. State

674 N.W.2d 73, 2004 WL 96768
CourtSupreme Court of Iowa
DecidedJanuary 22, 2004
Docket02-0090
StatusPublished
Cited by10 cases

This text of 674 N.W.2d 73 (Fullenwider v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullenwider v. State, 674 N.W.2d 73, 2004 WL 96768 (iowa 2004).

Opinions

LARSON, Justice.

Earl Fullenwider was convicted of possession with intent to deliver controlled substances, possession of a firearm as a felon, failure to affix tax stamps, and enhancement of his penalty for possession of a firearm while possessing controlled substances. The court of appeals affirmed his convictions on direct appeal, and Fullen-wider applied for postconviction relief. His postconviction application was denied, and he appealed. The court of appeals affirmed the denial, and we granted further review. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Following police surveillance of an apartment occupied by Brandy Johnson and her daughter, the police executed a search warrant for the apartment. They found a digital scale, crack cocaine, and Fullenwider — -in bed with Johnson. The police also found a gun under Fullenwider’s side of the bed, although they found no fingerprints on it. The cocaine was in a plastic bag on a chair, still wet, and the [75]*75bag together with the scale was pushed under a table in the kitchen. LaShawn Williams, who is not involved in this case, was lying on the floor five or six feet from the cocaine. Johnson told the police that she and her daughter were the only people occupying the apartment and that all of the contents of the apartment belonged to her. Fullenwider, however, admitted that a cell phone found on the table immediately above the drugs was his. Testimony suggested the cocaine, which was still wet, had been manufactured one and one-half to two hours before the search.

The police surveillance had revealed that Fullenwider was a frequent visitor to the apartment building where Johnson lived. However, the search revealed no evidence that Fullenwider actually lived there. The police found no paperwork to tie him to the apartment and found no items of clothing (except the clothes by his side of the bed) or other personal items belonging to Ful-lenwider.

Fullenwider and Johnson were tried jointly for possession of cocaine with intent to deliver and failure to affix a tax stamp. Fullenwider was also charged with being a felon in possession of a firearm, and the State sought an enhanced penalty on the drug offenses because of the presence of the gun. Prior to trial, Fullenwider rejected a plea agreement that would have limited his total sentence to an indeterminate term of forty years. After the first day of trial, Fullenwider changed his mind and decided to accept the previously offered agreement. The court, however, refused to approve the plea agreement at that stage.

Fullenwider was convicted on all charges. Because he was convicted of a class “B” felony subject to a firearm enhancement, the court sentenced him to fifty years. See Iowa Code § 124.401(l)(e) (1995). This sentence was then doubled because Fullenwider was a repeat offender. See Iowa Code § 124.411(1). Fullenwider was also sentenced to two indeterminate, five-year terms, based on two class “D” felonies, with all terms to run concurrently. Ful-lenwider lost all subsequent challenges in the court of appeals and in his postconviction proceeding.

II. Principles Underlying Ineffective-Assistance-of-Counsel Claims.

This appeal is based on Fullenwider’s claims of ineffective assistance of counsel, based on trial and appellate counsel’s failure to (1) make an adequate record on the district court’s rejection of the plea agreement, (2) challenge the sufficiency of the evidence of cocaine possession, (3) raise a federal due process claim, (4) object to a jury interrogatory, (5) object to certain jury instructions, and (6) object to the court’s consideration of impermissible sentencing factors. We do not address all of the issues raised because some of them are rendered moot by our disposition of the case on other grounds.

Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance, the applicant must show (1) the attorney failed to perform an essential duty in representing the defendant and (2) prejudice resulted. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). To prove a breach of an essential duty, the applicant faces a strong presumption that the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).

The second prong of the ineffective-assistance test, prejudice, is shown if [76]*76the applicant establishes a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

III. The Plea Agreement.

Fullenwider’s first ineffective-assistance claim is based on his attorney’s alleged failure to make a record on the trial court’s refusal to approve a plea agreement on the second day of trial. Specifically, Fullenwider contends his trial attorney should have introduced evidence that the court’s decision was based on a firm policy in that district that plea agreements must be presented during the week prior to trial. He claims the court’s ruling was invalid under State v. Hager, 630 N.W.2d 828, 835-36 (Iowa 2001) (firm policy of rejecting plea agreements after specified time held to constitute abuse of discretion). (The State asks us in this appeal to modify or overrule Hager; however, we decline to do so.)

The State responds that Fullenwider’s trial counsel did not breach his professional duty in representing Fullenwider because Hager was not decided until well after Fullenwider’s trial. Fullenwider counters that the principles of law adopted in Hager were well established before Hager was decided.

We conclude Fullenwider’s trial counsel did not breach a professional duty in failing to anticipate the Hager ruling. As we noted in Hager, the courts around the country are split on the issue of applying plea-deadline rules. See id. at 834. The dissent in Hager characterized the holding of the majority opinion to be part of the “distinctly minority view concerning modern court administration.” Id. at 838 (Neuman, J., dissenting). Fullenwider’s counsel was not bound to anticipate future rulings by this court when those rulings are not reasonably predictable. See Hepperle, 530 N.W.2d at 740; State v. Ogilvie, 310 N.W.2d 192, 197 (Iowa 1981).

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Fullenwider v. State
674 N.W.2d 73 (Supreme Court of Iowa, 2004)

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674 N.W.2d 73, 2004 WL 96768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullenwider-v-state-iowa-2004.