Patrick Neill Moreno, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: April 6, 2016
• Docket: 14-1982
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1982 Filed April 6, 2016

PATRICK NEILL MORENO, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.

Patrick Moreno appeals the dismissal of his postconviction application,

claiming he received ineffective assistance from postconviction counsel.

AFFIRMED.

D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

Patrick Moreno was the defendant in a number of criminal proceedings

involving intoxication. In the first—which he labels the “front yard case”—the

State charged Moreno with operating a motor vehicle while intoxicated (second

offense) and public intoxication (second offense). In the second—which he calls

the “on-ramp case”—the State charged him with operating a motor vehicle while

intoxicated (third offense), driving with a barred license, and driving with a

revoked license. Moreno entered an Alford plea1 in the “on-ramp case,” in

exchange for dismissal of the “front yard case.”

Meanwhile, the State initiated a third criminal action, charging Moreno with

operating a motor vehicle while intoxicated (third offense), driving with a barred

license as a habitual offender, and driving with a denied or revoked license.

Moreno’s attorney filed a motion to suppress evidence, which was denied. The

district court held a nonjury trial on the minutes of testimony and found Moreno

guilty. This court affirmed the suppression ruling. See State v. Moreno, No. 13-

1053, 2014 WL 2600282, at *2 (Iowa Ct. App. June 11, 2014).

Moreno filed a postconviction-relief application alleging:

[The on-ramp case] was up for trial and petitioner thought there was to be two separate trials. Petitioner was not ready for trial in [the on-ramp case] but was ready to go to trial in [the front yard] case. Petitioner was assured that he would eventually go to trial in [the on-ramp case] but was told by counsel to plead instead.

He also alleged his attorney in the third criminal proceeding was “ineffective . . .

because the arresting officer did not have probable cause and counsel did not file

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970). An Alford plea allows a defendant to “voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence” without admitting “participation in the acts constituting the offense.” 3

a motion to suppress evidence.” As noted, counsel did file a suppression motion

in the third proceeding.

The State moved to dismiss the postconviction-relief application. The

district court granted the motion.

On appeal, Moreno contends his postconviction attorney was ineffective in

(1) “failing to amend for a third time his Petition to claim that his plea was

involuntary and to make a record of what transpired at the time of [his] plea . . .

and argue the effectiveness of [his] original trial counsel in advising him to plead

guilty to that charge” and (2) “failing to argue . . . that both [his] original trial

counsel and appellate counsel were ineffective in arguing [the motion to

suppress.]” He must show the breach of an essential duty and prejudice. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). “If we conclude a claimant

has failed to establish either of these elements, we need not address the

remaining element.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

I. Plea – First Two Proceedings

Moreno explicates his first ineffective-assistance-of counsel claim as

follows:

[H]e should have been able to go to trial on the case he was prepared to try, the front yard case, which he feels certain he would have won rather than the on-ramp case which he was not prepared to try on that day. This would have left him with only the on-ramp case to dispose of by itself which would have placed him in a better position to negotiate a plea deal better than he received.

Moreno does not allege or argue that his attorney provided incompetent advice

with respect to his plea in the on-ramp case or that the outcome would have

been different with competent advice. This is a predicate to a finding of 4

Strickland prejudice in the plea bargaining process. Id. at 869; see also Nance v.

State, No. 10-0810, 2011 WL 2556798, at *2 (Iowa Ct. App. June 29, 2011).

(“[Applicant] . . . claims postconviction counsel was ineffective in not calling his

criminal trial counsel to testify at the postconviction relief hearing about what the

attorney told [him] during the plea negotiations yet [he] does not show what he

contends the attorney would have said had the attorney been called.”). In

addition, Moreno offers nothing more than bare speculation that plea negotiations

in the on-ramp case would have resulted in a better outcome than he received—

dismissal of the front yard case—had he first gone to trial and won the front yard

case. Finally, his suggestion of coercion in the plea process is contradicted by

his admission that the plea was not the result of threats or promises. Having

failed to establish Strickland prejudice, Moreno cannot prevail on his first

ineffective-assistance-of-counsel claim.

II. Suppression Ruling – Third Proceeding

Moreno’s second claim is equally unavailing. As noted, his attorney filed a

motion to suppress evidence in the third proceeding. The motion was premised

on the validity of the officer’s stop for a windshield-wiper violation. The district

court denied the motion, and this court affirmed the court’s denial.

Now, Moreno asserts trial and appellate counsel failed to “effectively

argue” the suppression motion and postconviction counsel should have raised

their ineffectiveness. He suggests counsel should have questioned the officer’s

stop based on the officer’s distance from his vehicle and his inability to see the

windshield-wiper violation through the frosted rear window. He also suggests

counsel should have referred to a dashboard camera video of the stop. 5

Moreno’s trial attorney raised these precise concerns at the suppression

hearing. Her cross-examination and re-cross-examination of the officer was

pertinent and thorough. Because trial counsel did what Moreno now claims she

should have done, postconviction counsel breached no essential duty in failing to

raise the issue, and this ineffective-assistance-of-counsel claim also fails.

We affirm the district court’s dismissal of the postconviction-relief

application.