IN THE COURT OF APPEALS OF IOWA
No. 19-0950 Filed January 21, 2021
MARCIA SHAFFER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Michael K. Jacobsen,
Judge.
The applicant appeals the denial of her application for postconviction relief.
AFFIRMED.
Andrew Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Doyle, P.J., Schumacher, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
POTTERFIELD, Senior Judge.
Marcia Shaffer appeals from the denial of her application for postconviction
relief (PCR). As she did before the district court, she makes claims of actual
innocence and argues her trial counsel provided ineffective assistance.
I. Background Facts and Proceedings.
In 2013, Shaffer was charged with eight crimes, including arson in the first
degree, burglary in the first degree, attempted murder, three charges of
possession of a controlled substance, and two charges of unlawful possession of
prescription drugs.
With the assistance of counsel, Shaffer reached a plea agreement with the
State. Pursuant to that agreement, Shaffer entered Alford guilty pleas1 to the
reduced charges of arson in the second degree and burglary in the second degree.
She also entered Alford guilty pleas to two counts of possession of a controlled
substance, third offense (oxycodone and hydrocodone). The other four charges
were dismissed. Additionally, Shaffer and the State agreed to recommend the four
sentences “would run consecutive with each other and not concurrently.”
At sentencing, Shaffer took advantage of the fact that none of the crimes to
which she entered Alford guilty pleas were forcible felonies and advocated for
suspended prison sentences and probation. The State urged the court to sentence
Shaffer to consecutive terms of imprisonment for a total of thirty years of
1 North Carolina v. Alford, 400 U.S. 25 (1970) (allowing a defendant to plead guilty to a crime without admitting to committing the actions underlying the charge where “a defendant intelligently concludes that [their] interests require entry of a guilty plea and the record before the judges contains strong evidence of actual guilt”). 3
incarceration. The court sentenced Shaffer to four consecutive prison terms, for a
total term of incarceration not to exceed thirty years.
Shaffer did not file an appeal.
In late 2014, she filed a PCR application, which she later amended with the
assistance of counsel. Shaffer asserted she was actually innocent and claimed
trial counsel provided ineffective assistance in several ways.
Following a hearing in March 2019, the district court denied Shaffer’s PCR
application. She appeals.
II. Standards of Review.
“Generally, an appeal from a denial of an application for postconviction relief
is reviewed for correction of errors at law.” Goode v. State, 920 N.W.2d 520, 523
(Iowa 2018) (citation omitted). But when “the applicant asserts claims of a
constitutional nature”—such as claims of ineffective assistance of counsel—our
review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
III. Discussion.
A. Actual Innocence.
Shaffer’s convictions stem from two different incidents. The burglary and
arson convictions involve an incident that took place at the home of Thomas Carroll
in the early morning hours of June 3, 2013. The two convictions for possession of
a controlled substance stem from pills found in Shaffer’s possession on July 15,
2013, when she was arrested for the incident at Carroll’s home. Here, Shaffer
purports to claim actual innocence to all four crimes to which she pled guilty.
In order to succeed on her claims, Shaffer “must meet the demanding
actual-innocence standard to prove the validity of [her] actual-innocence claims.” 4
Dewberry v. State, 941 N.W.2d 1, 5 (Iowa 2019) (quoting Schmidt v. State, 909
N.W.2d 778, 790 (Iowa 2018)). To do so, she “must show ‘by clear and convincing
evidence that, despite the evidence of guilt supporting the conviction, no
reasonable fact finder could convict the applicant.’” Id. at 5 (citation omitted).
1. Arson and Burglary. Shaffer argues she has proved her innocence
because “[f]rom her guilty plea going forward, [she] has proclaimed her innocence”
and notes she had an alibi through Natalie Fowler. But Shaffer does nothing to
address the multitude of strong evidence against her and overstates the facts to
which Fowler attested.
On the night of Sunday, June 2, 2013, Shaffer went to a local bar with her
coworker, Amanda, and her coworker’s husband. Surveillance video later
obtained from the bar confirms this and shows the outfit Shaffer was wearing.
Sometime in the early hours of June 3, the three left the bar together. According
to Amanda’s deposition, she dropped Shaffer off at her car and then Amanda and
her husband went home. After they arrived, Amanda called Shaffer to check on
her. Shaffer answered and reported she was “at Tim or Tom’s house” and was
fine.2 Based on footage obtained from a trail camera Carroll had previously
installed pointing at the door to his home, a woman entered his home and removed
items from approximately 2:30 a.m. until 3:30 a.m.3 According to Carroll’s
2 That this call took place was later corroborated when an officer checked Shaffer’s call log on her phone. 3 We note Carroll testified in his deposition that he recognized Shaffer as the
person in the trail camera photographs. Additionally, Detective Adam Infante filed a police report, which was attached to the minutes of evidence, that stated: The [bar surveillance] video shows Shaffer wearing a hooded sweatshirt with letters and a logo on it. Hair is also down. I took a still photo from this video and compared it to the photos taken from 5
deposition, he awoke to his smoke alarm beeping around 4:00 a.m. He went to
grab his cell phone to call for help and realized it was gone, so he left the house
and drove to a neighbor’s home approximately one mile away. Sometime after
police arrived, Carroll noticed a smoked cigarette and flashlight sitting on his deck
and knew neither belonged to him. Police took both into evidence, and the
cigarette was later tested and found to have on it Shaffer’s DNA. After firefighters
put out the smoldering fire in Carroll’s laundry room, they began investigating and
found three separate fires had been lit in different areas of Carroll’s home. Carroll
noticed some items were missing, including a boom box that had previously been
owned by Shaffer.
Later that same morning, sometime before 8:00 a.m., Shaffer called
Amanda and told her to say they had been together until 4:30 a.m. if anyone asked.
Amanda indicated she would not do this and later told police about Shaffer’s
request.
A few days later, police obtained a search warrant for Shaffer’s home.
While there, they found items Carroll identified as his, including Carroll’s cell
phone. Shaffer initially denied knowing how she had Carroll’s phone or other
items. During the same conversation, Shaffer eventually admitted to being at
Carroll’s home on June 3. She claimed she stayed in the vehicle while “Becky”
went inside the home and took several items. Shaffer told the officer she received
Tom Caroll’s trail camera. The photos show that Shaffer is also wearing the same sweatshirt at Carroll’s house an hour later after leaving [the bar]. We are unable to independently conclude it is Shaffer, wearing the same sweatshirt in the trail camera photographs. 6
a call from Becky after Amanda dropped her off. With Shaffer’s permission, the
officer checked the call log on her phone. He noted the only call Shaffer received
was at 2:12 a.m. He asked Shaffer if he could use her phone to call the number
so he could speak to Becky, and Shaffer agreed. When the officer called the
number and asked for Becky, he was told he had the wrong number and had
reached Amanda—Shaffer’s coworker. Later, Shaffer admitted getting out of the
vehicle while at Carroll’s house and petting the dog. Later still, she said she went
inside the residence to act as lookout in case anyone drove by. She eventually
admitted carrying items out of Carroll’s home; Shaffer never admitted starting the
fires.4
Shaffer’s response to all of this evidence against her is to proclaim she is
innocent and that we should rely on the alibi provided by Fowler. In her deposition,
Fowler claimed “the day that [Shaffer] had supposedly done this,” Fowler was with
her from noon until 2:45 a.m. But later in her deposition, Fowler was unclear what
night she was talking about. At one point, she was confident the day they spent
together was in the middle of the week. But June 2, 2013, was a Sunday. Once
this inconsistency was pointed out to her, the following exchange occurred:
Q. Okay. And if a review of a calendar shows that June 2 was on a Sunday— A. Then I was erred in my middle of the week. Q. So you would have gone out drinking Sunday night. A. The 2nd or the 3rd, so it would have been Monday night. Q. So you could have gone out drinking Monday night, the 3rd? A. Yeah. Bars wouldn’t be open that late on Sunday. .... Q. So that’s one absolute you can say: It was not on a Sunday. A. It was not on a Sunday.
4 “Becky” was never identified or confirmed to exist. 7
After more questions by Shaffer’s attorney, Fowler settled on the answer that she
did not know what date she spent with Shaffer; she agreed “[i]t’s possible [they]
did this on Sunday, June 2, 2013. It’s possible [they] did it on Monday, June 3.
2013.” At best, Fowler has sworn she was with Shaffer some night into the next
morning until 2:45 a.m.
Even if Fowler’s claims were more steadfast, they would not overcome the
strong evidence establishing Shaffer’s guilt. First, Shaffer admitted to police she
was in Carroll’s home and stole things on the morning in question. Only after she
made this admission, and after she already asked Amanda to provide an alibi and
was rebuffed, did Fowler’s ability to provide an alibi come up. Additionally, the
claim that Shaffer was with Fowler rather than at Carroll’s on the night in question
is directly contradicted by evidence that includes surveillance footage and trail
camera pictures; DNA testing; Shaffer’s own statement to Amanda, which is
supported by phone call logs; and stolen items found by police in Shaffer’s
possession.
The district court did not err in concluding Shaffer failed to prove these
actual-innocence claims.
2. Possession of Controlled Substances. We recognize that within her
argument section titled “actual innocence claim” in her appellate brief, Shaffer
mentions her convictions for possession of controlled substances. But it is not
clear she ever raised these issues to the district court, and, even if she did, she
never got a ruling on them.
Part of the lack of clarity is due to the fact that Shaffer did not assert any
claim of actual innocence until the day before the hearing on her PCR application. 8
Her claims in that March 28, 2019 filing are vague, but they seem to only reference
her arson and burglary convictions. At the PCR hearing, the only mention of the
possession charges was Shaffer’s testimony—when asked if there was anything
important she wanted to bring up—that her trial attorney was supposed to get the
oxycodone and hydrocodone charges dismissed. She did not elaborate why those
charges were supposed to be dismissed. Her post-trial brief was silent as to her
possession convictions. In its ruling, the district court only considered Shaffer’s
claim of an alibi through Fowler—which has no relation to her possession
convictions—before concluding, “Ms. Shaffer’s claim of actual innocence must fail
as she does not meet her burden of proof.”
Insofar as she has raised these claims of actual innocence on appeal, they
are not preserved for our review and we do not consider them. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
B. Ineffective Assistance of Counsel.
Shaffer maintains she was denied effective assistance by trial counsel in
five respects: (1) failing to pursue evidence of her innocence by not conducting
adequate discovery; (2) instructing her to plead guilty; (3) misinforming her that
she would receive concurrent rather than consecutive sentences; (4) allowing the
sentencing proceedings to continue in spite of the fact she was on psychiatric
medication and did not understand what was happening; and (5) failing to file an
appeal of her sentence after she instructed him to do so. As with her actual- 9
innocence claims, it is unclear that any of these alleged errors relate to her
possession convictions.
An applicant “alleging ineffective assistance of counsel must prove
(1) counsel failed to perform an essential duty and (2) prejudice resulted.” State
v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “To establish prejudice, [an
applicant] must demonstrate ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. (citation omitted). “In the context of a guilty plea, an applicant for
[PCR] must prove ‘a reasonable probability that, but for counsel’s alleged errors,
he [or she] would not have pled guilty and would have insisted on going to trial.’”
Id. (second alteration in original) (citation omitted). “The probability of a different
result must be ‘sufficient to undermine confidence in the outcome.’” Id. (citation
omitted).
1. Conduct Discovery. Shaffer argues her trial counsel breached an
essential duty by failing to conduct adequate discovery. She maintains that if he
had deposed Fowler and her fiancé, Stewart Wren, she would not have pled guilty
because her innocence would have been established.
We have already pointed out the weaknesses of Fowler’s deposition.
Shaffer asserts that Fowler would have had a better memory if she was deposed
in 2014 rather than 2016. But even if Fowler confidently testified that she was with
Shaffer from Sunday, June 2 into the morning of Monday, June 3, this purported
alibi would still have credibility issues as photographs, DNA testing, and Shaffer’s
own admissions contradict it by putting Shaffer at the scene of the arson and
burglary. 10
Wren was not deposed until after Shaffer’s guilty pleas, but he testified that
on June 2, Shaffer “was there when [he] went to bed” “around 10-ish,” and “she
was there when [he] got up,” on June 3, which “must have been 5:30, 6:00 [a.m.]
at the latest.”5 In between those times—when the arson and burglary occurred—
Wren agreed he had no knowledge whether Shaffer was in their apartment and
agreed she could have left and come back without him knowing. It was pointed
out to Wren that by Shaffer’s own claims, she went out with Fowler on the night in
question, and Wren then testified she may have but he is such a deep sleeper he
never heard her leave. This is not an alibi at all. It provides no information about
where Shaffer was at the time the actual crimes occurred. Plus it is contradicted
by Shaffer’s testimony at the PCR hearing that she was at work until 10:30 or 11
p.m. and then went to a bar with a coworker. It is also at odds with Fowler’s
claims—if we are to understand them to mean she spent June 2 into June 3 with
Shaffer—that she was with Shaffer from noon until 2:45 a.m.
The discovery Shaffer claims should have been conducted leads to two
separate, conflicting stories, neither of which match Shaffer’s own testimony or
which explain the physical evidence linking Shaffer to the scene of the arson and
burglary. Shaffer has not proved counsel breached a duty by failing to take these
depositions as part of her pre-plea discovery. This claim fails.
5 Wren did not provide these dates. He testified he was “not specifically sure” about the date but he knew he was referencing when the arson and burglary occurred “[b]ecause [he] remember[ed] when she was arrested and all that, [he] remember[ed] the dates coming up, and that was the time that she was there in the apartment with me.” 11
2. Instruction to Plead Guilty. Shaffer claims she only pled guilty because
her trial counsel instructed her to do so. At the PCR hearing, Shaffer testified,
“There was several different plea bargains, and I wasn’t sure which one—I didn’t
want to accept any of them. He was the one who decided to accept it. I didn’t give
him that—I didn’t tell him he could do that. I didn’t agree with it.”
But this claim is contradicted by the plea colloquy, in which Shaffer
participated and agreed she wanted to plead guilty to the amended charges.
Additionally, trial counsel testified credibly when he was deposed in the PCR
action. The following exchange took place between Shaffer’s PCR counsel and
trial counsel during trial counsel’s deposition:
Q. Is it your testimony, though, that you let Ms. Shaffer decide whether or not to go to trial? A. I always let the client decide because, push come to shove, the judge will ask them if it’s their decision. .... Q. And you did not in any way push, threaten or coerce her into taking a plea. A. I couldn’t make her any promises one way or the other. I had nothing to coerce her with. I couldn’t promise her anything. I thought we had a good chance at probation because of the amount of time she’d spent in jail leading up to the plea and sentencing. I could see a change in her from the time we went to sentencing as to when I first met her, the chance to be sober for an extended period of time, the chance to—for her to consider things that were going on in her life. I could see a change. I thought we had a good shot at probation. I thought we had a good argument. Q So it is your testimony, sir, that you let her decide whether or not to try the case. A Yes. Q You would disagree, then, if Marcia Shaffer testified that she asked you to go to trial and you told her you wouldn’t. A Oh, I never told her I wouldn’t. If I had had a case where, for some reason, I had chosen not to take it to trial, I’d just withdraw.
Shaffer has not proved she would have insisted to go to trial but for some breach
of duty by counsel. This claim fails. 12
3. Consecutive Sentences. Shaffer claims counsel misinformed her that
she would receive concurrent rather than consecutive sentences, which induced
her to plead guilty. Again, Shaffer has nothing to support her claim but a bare
assertion she made at the PCR hearing. And again, this claim is contradicted by
the plea colloquy. At the beginning, the State verbally explained the plea
agreement to the court, stating in part, “Also it is recommended and agreed upon
that all four of these counts would run consecutive with each other and not
concurrently whether or not the Court granted probation or incarceration was
ordered.” With Shaffer present, her trial attorney responded, “[T]hat is a correct
statement of our plea agreement. . . . The parties are free to argue any legal
sentence although we are both in agreement that these should run consecutive for
30 years. Is just a question whether or not Ms. Shaffer would be granted an
opportunity for probation.” Then, during the colloquy, the court asked Shaffer
directly, “I want to put it on the record anyway, that you understand that the State
is going to be recommending that these run consecutive to each other so that you
could be sentenced to an indeterminate term not to exceed 30 years. Do you
understand that?” Shaffer responded, “Yes.”
Shaffer cannot establish that she was unaware she agreed to consecutive
sentences before she entered her guilty pleas. Counsel did not breach an
essential duty, and this claim fails.
4. Medicated at Sentencing. Shaffer maintains that due to psychiatric
medication she was taking at the time of sentencing, she did not understand what
was happening and her trial counsel should have stopped the proceedings. 13
At sentencing, Shaffer’s trial attorney brought up the fact she told him she
was on medication and asked if it “had an impact on [her] ability to think this
morning and to be prepared . . . ?” Shaffer answered, “Well, yeah, to a certain
extent.” When asked to explain it to the court, Shaffer responded, “It just kind of
dulls my senses, Gabapentin I’m on, I can’t sometimes do a full sentence. When
I’m trying to speak something, it doesn’t come out right. But that’s the only one it
does it with.” The court asked Shaffer if she had understood everything so far, and
she said she had. The court then responded, “Here’s what I’m going to tell you. If
at any time you do not understand something that’s going on, tell me, and we will
go over it. I want to make sure that you do understand what’s going on here today.
Are you capable of doing that?” Shaffer said, “Yes.”
It is unclear what more Shaffer contends counsel should do. Counsel
alerted the court that Shaffer was on medication that had some impact on her.
When asked about it more in-depth, Shaffer told the court she understood what
was happening and would let the court know if that changed. Shaffer never did
so.
While the record establishes that Shaffer was on medication at the time of
sentencing, it does not establish Shaffer could not understand the proceedings.
Furthermore, Shaffer has done nothing to establish that she suffered prejudice as
result—a necessary component of a successful claim of ineffective assistance.
Shaffer’s alleged lack of understanding at sentencing does not impact her guilty
pleas, entered five months earlier. She makes no argument that she received a
different, harsher sentence because of this alleged impairment. She seems to
assume it is per se prejudicial if a defendant struggles to understand the 14
sentencing proceedings, but she cites no authority to support any such premise.
This claims fails.
5. Failure to File an Appeal of Sentence. Shaffer maintains she wanted her
trial counsel to appeal her sentence but he failed to do so. Trial counsel was asked
about this in his deposition, and he testified he had no independent memory of it.
However, in reviewing his file, he found no note to file an appeal. He explained
that he has a standard practice, stating, “I file notices of appeal many times, almost
always after a trial if we don’t get the verdict we want, and after some pleas. I
make a note of it. We have a standardized form. A lot of times, just give it the
secretary; they do it for us. . . .” The district court found this testimony from trial
counsel more credible than Shaffer’s assertion—corroborated by Wren in his
deposition—that she asked for an appeal immediately after being sentenced. After
our review of the record, we find no reason to disagree with the district court’s
credibility determination.6
Shaffer has not established that counsel failed to file an appeal she
requested, and this claim fails.
6 We recognize we generally “give weight to the lower court’s findings concerning witness credibility.” Ledezma, 626 N.W.2d at 141. But this deferential standard is based on the trial court’s opportunity to observe the demeanor of the witnesses. See, e.g., Weaver v. State, No. 04-0870, 2005 WL 600228, at *6 (Iowa Ct. App. Mar. 16, 2005). Here, the district court had only a transcript of the deposition of the trial attorney—not a live witness—and therefore had the same information we do when determining credibility. 15
IV. Conclusion.
Because Shaffer failed to establish either her claims of actual innocence or
her claims of ineffective assistance of trial counsel, we affirm the denial of her PCR
application.