Kevin Baxter, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: February 5, 2014
• Docket: 3-1232 / 11-0694
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 3-1232 / 11-0694 Filed February 5, 2014

KEVIN BAXTER, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Thomas N.

Bower, Judge.

Applicant appeals the district court’s decision denying his application for

postconviction relief from his convictions for manufacturing methamphetamine

and receipt of precursor drugs for an unlawful purpose. AFFIRMED.

Carla S. Pearson of Pearson Law, P.C., Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher,

Assistant County Attorney, for appellee State.

Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.* Bower, J.,

takes no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2

MAHAN, S.J.

Kevin Baxter appeals, claiming he received ineffective assistance from

postconviction counsel. Baxter contends postconviction counsel should have

called more witnesses to testify at the hearing, done more to refresh the memory

of his trial counsel, and investigated the case more fully. He does not assert

what additional information could have been presented if these actions were

taken. We conclude Baxter has not shown he received ineffective assistance

from postconviction counsel. We affirm the decision of the district court.

I. Background Facts and Proceedings

Kevin Baxter was charged with conspiracy to manufacture

methamphetamine, manufacturing methamphetamine, possession of

pseudoephedrine, and receipt of precursor drugs for an unlawful purpose. A jury

found him guilty on all charges. At sentencing, the district court merged the

conspiracy charge with the manufacturing charge and merged the possession

charge with the receipt of precursors charge. Baxter was sentenced on his

convictions for manufacturing methamphetamine, in violation of Iowa Code

section 124.401(1)(b)(7) (1999), and receipt of precursor drugs, in violation of

section 124B.9, to terms of imprisonment not to exceed thirty years and ten

years, respectively, to be served concurrently.1

Baxter’s convictions were affirmed on appeal. State v. Baxter, No. 00-

0407, 2002 WL 570663 (Iowa Ct. App. Feb. 20, 2002). Procedendo was issued

on May 30, 2002.

1 On the charge of manufacturing methamphetamine, Baxter was sentenced pursuant to section 124.411 to three times the term of imprisonment otherwise authorized because this conviction was a second or subsequent offense. 3

Baxter filed an application for postconviction relief on July 25, 2002. He

claimed his trial counsel was ineffective for failing to: (1) file a motion to dismiss

based upon violation of defendant’s speedy trial rights; (2) request the dismissal

of a juror who fell asleep during the trial; (3) adequately consult with defendant;

and (4) adequately investigate the case. He claimed he received ineffective

assistance of appellate counsel on the following grounds: (1) failure to raise the

speedy trial issue; (2) failure to raise an issue regarding whether defendant was

prejudiced because the jury heard evidence on both the conspiracy and

manufacturing charges, which were later merged; (3) failure to raise the issue of

prosecutorial misconduct; (4) failure to raise an issue concerning the sleeping

juror; and (5) failure to allege ineffective assistance of trial counsel due to

inadequate investigation of the case.

For reasons not readily apparent from the record, the case languished in

the court system until a postconviction hearing was held on January 31, 2011.2

Baxter testified at the hearing, as did his trial counsel. Baxter’s trial counsel

testified he did not remember much in the way of specifics about Baxter’s case.

The district court denied Baxter’s application for postconviction relief, finding he

had not shown he received ineffective assistance from trial or appellate counsel.

Baxter now appeals.

2 Baxter’s first postconviction counsel had a conflict and new counsel was appointed on March 19, 2004. The case was dismissed pursuant to Iowa Rule of Civil Procedure 1.944 on January 1, 2005, but was later reinstated. The case was set for hearing several times, but counsel for one party or the other would ask for a continuance, and these requests were granted by the court until the matter had dragged on for more than eight years. 4

II. Standard of Review

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

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the applicant a

fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “In determining

whether an attorney failed in performance of an essential duty, we avoid second-

guessing reasonable trial strategy.” Everett v. State, 789 N.W.2d 151, 158 (Iowa

2010). In order to show prejudice, an applicant must show that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012). An applicant has the

burden to show by a preponderance of the evidence that counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

III. Merits

On appeal, Baxter contends he received ineffective assistance from

postconviction counsel. He asserts postconviction counsel should have sought

testimony from his appellate counsel and an attorney who assisted his trial

counsel. He also asserts that postconviction counsel should have done more to

refresh the memory of his trial counsel. Baxter additionally asserts

postconviction counsel did not do enough to investigate the case. He claims he

was prejudiced by the performance of his postconviction counsel and should

receive a new postconviction hearing.

Baxter is required to state the specific ways in which postconviction

counsel’s performance was inadequate. Rivers v. State, 615 N.W.2d 688, 690 5

(Iowa 2000). He must also state how competent representation would have

changed the outcome of the postconviction proceeding. Id. “When complaining

about the adequacy of an attorney’s representation, it is not enough to simply

claim that counsel should have done a better job.” Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994).

While Baxter contends postconviction counsel should have called more

witnesses to testify at the hearing, done more to refresh the memory of his trial

counsel, and investigated the case more fully, he does not assert what additional

information could have been presented if these actions were taken. Baxter does

not suggest what information would have been revealed by calling other

witnesses or conducting additional investigation, or how this information would

have supported his application for postconviction relief. See id. Furthermore, he

does not state how this additional information would have changed the result of

the postconviction proceedings. See id.

We conclude Baxter has not shown he received ineffective assistance

from postconviction counsel—he has not shown counsel failed to perform an

essential duty or that he was prejudiced by counsel’s performance. We note

Baxter’s appellate brief does not address the merits of his underlying claims of

ineffective assistance from trial and appellate counsel. Therefore, we do not

address these issues in our opinion.

We affirm the decision of the district court denying Baxter’s application for

postconviction relief.

AFFIRMED.