IN THE COURT OF APPEALS OF IOWA
No. 14-1004 Filed August 19, 2015
ROSENDO ENRIQUEZ JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark J. Smith,
Judge.
Enriquez appeals from the denial of his application for postconviction
relief. AFFIRMED.
Michael J. Piper of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Heather Mapes, Assistant Attorney
General, and Alan Ostergren, County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ. 2
DANILSON, C.J.
Rosendo Enriquez Jr. appeals from the denial of his application for
postconviction relief (PCR). He maintains the district court wrongly denied his
application because he received ineffective assistance from both trial counsel
and direct appeal counsel. Specifically, he maintains counsel should have
argued for a distinct standard to analyze searches and searches under the Iowa
Constitution. Because we do not expect counsel to anticipate changes in the
law, Enriquez has not established that either trial counsel or direct appeal
counsel failed to perform an essential duty. Thus, we affirm the district court’s
denial of his PCR application.
I. Background Facts and Proceedings.
On June 30, 2008, law enforcement searched a residence shared by
Enriquez and Stephanie Ryder. Ryder was on probation at the time and had
agreed to submit to searches of her person, property, place of residence, vehicle,
and personal effects. Ryder’s probation officer, accompanied by police officers,
went to the residence to investigate suspicions of possible drug activity and
firearms in the home.
When the officers arrived, Enriquez was in the shower. Ryder informed
him of the officers’ presence, and Enriquez stepped out of the bathroom wearing
a towel. He asked to get dressed in the bedroom. One of the officers agreed but
stated he would have to accompany Enriquez for the officers’ safety. The officer
positioned himself at the door of the bedroom and watched through the slight
opening. The officer noted that Enriquez reached into the closet at mid-level with
both hands and “fumbled” or “messed with” something. Enriquez did not remove 3
anything from the closet. He then retrieved clothing from the bed and got
dressed. After Enriquez exited the room, the officer went to the closet and
discovered approximately twenty-one grams of methamphetamine and a small
amount of cocaine. The officer also noticed a silencer on the dresser. At that
point, the officers applied for a warrant. After receiving the warrant, the officers
found a handgun in the bedroom closet as well as additional ammunition in a hall
closet.
On July 7, 2008, Enriquez was charged with possession of a controlled
substance (more than five grams of methamphetamine) with intent to deliver in
possession of a firearm, drug tax stamp violation, possession of a controlled
substance (cocaine), and possession of a firearm.
Enriquez filed a motion to suppress on September 24, 2008. In it, he
asserted that because the search was conducted without a warrant and without
his consent, it was in violation of the Fourth Amendment to the United States
Constitution. Following a hearing on the motion, the district court granted
Enriquez’s motion to suppress. The next day, the State filed a motion to
reconsider, arguing that even without the consent of Enriquez, the search was
valid because it was justified by Ryder’s probation agreement and the plain view
doctrine. On November 7, 2008, the district court found that the officers
conducted a lawful search of the home, no private area of Enriquez’s was
searched, and Enriquez did not object to the search. It then denied the motion to
suppress. 4
Following a jury trial, Enriquez was convicted of each of the charges on
July 22, 2009. He was sentenced to a total term of incarceration not to exceed
fifty-five years.
Enriquez filed a direct appeal, and our supreme court transferred the case
to us. In his direct appeal, Enriquez attacked the validity of the search as being
done without his consent and inconsistent with the plain view doctrine. In State
v. Enriquez, No. 09–1460, 2011 WL 1584114, at *4 (Iowa Ct. App. April 27,
2011), we affirmed his conviction. Enriquez sought further review from the Iowa
Supreme Court, which was denied on January 20, 2012. Procedendo issued
February 3, 2012.
Enriquez filed his application for PCR on May 21, 2013. He argued both
trial counsel and direct appeal counsel were ineffective for failing to “assert,
argue, and preserve for appeal that the search violated the Iowa Constitution”
and “for failing to assert, argue, and preserve for appeal that the Iowa
Constitution should be distinguished from the Federal Constitution on the search
issue.”1 On May 22, 2014, the district court denied Enriquez’s application. He
appeals.
II. Standard of Review.
Generally an appeal from a denial of an application for PCR is reviewed
for corrections of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012). However, when an applicant asserts claims of a constitutional nature, our
1 Enriquez raised other arguments as well, but he has apparently abandoned those claims on appeal. 5
review is de novo. Id. Thus, we review claims of ineffective assistance of
counsel de novo. Id.
III. Discussion.
Enriquez maintains he received ineffective assistance from both trial
counsel and direct appeal counsel because each failed to raise an argument “of
differential treatment of searches and seizures under the Iowa Constitution.”
To prevail on a claim of ineffective assistance of counsel, Enriquez must
prove by a preponderance of the evidence (1) the attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). The same standards of
effectiveness that apply to trial counsel also apply to appellate counsel. Sims v.
State, 295 N.W.2d 420, 424 (Iowa 1980). The claim fails if either element is
lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).
Here, Enriquez has not established that either trial or direct appeal
counsel failed to perform an essential duty. To craft his argument regarding the
Iowa Constitution2, Enriquez relies on our supreme court’s decision State v.
Baldon, 829 N.W.2d 785, 795 (Iowa 2013). In Baldon, our supreme court relied
upon Article I, section 8 of the Iowa Constitution to conclude that prospective
consent to search in a parole agreement “does not represent a voluntary grant of
consent within our constitutional meaning.” 829 N.W.2d at 803.
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IN THE COURT OF APPEALS OF IOWA
No. 14-1004 Filed August 19, 2015
ROSENDO ENRIQUEZ JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark J. Smith,
Judge.
Enriquez appeals from the denial of his application for postconviction
relief. AFFIRMED.
Michael J. Piper of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Heather Mapes, Assistant Attorney
General, and Alan Ostergren, County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ. 2
DANILSON, C.J.
Rosendo Enriquez Jr. appeals from the denial of his application for
postconviction relief (PCR). He maintains the district court wrongly denied his
application because he received ineffective assistance from both trial counsel
and direct appeal counsel. Specifically, he maintains counsel should have
argued for a distinct standard to analyze searches and searches under the Iowa
Constitution. Because we do not expect counsel to anticipate changes in the
law, Enriquez has not established that either trial counsel or direct appeal
counsel failed to perform an essential duty. Thus, we affirm the district court’s
denial of his PCR application.
I. Background Facts and Proceedings.
On June 30, 2008, law enforcement searched a residence shared by
Enriquez and Stephanie Ryder. Ryder was on probation at the time and had
agreed to submit to searches of her person, property, place of residence, vehicle,
and personal effects. Ryder’s probation officer, accompanied by police officers,
went to the residence to investigate suspicions of possible drug activity and
firearms in the home.
When the officers arrived, Enriquez was in the shower. Ryder informed
him of the officers’ presence, and Enriquez stepped out of the bathroom wearing
a towel. He asked to get dressed in the bedroom. One of the officers agreed but
stated he would have to accompany Enriquez for the officers’ safety. The officer
positioned himself at the door of the bedroom and watched through the slight
opening. The officer noted that Enriquez reached into the closet at mid-level with
both hands and “fumbled” or “messed with” something. Enriquez did not remove 3
anything from the closet. He then retrieved clothing from the bed and got
dressed. After Enriquez exited the room, the officer went to the closet and
discovered approximately twenty-one grams of methamphetamine and a small
amount of cocaine. The officer also noticed a silencer on the dresser. At that
point, the officers applied for a warrant. After receiving the warrant, the officers
found a handgun in the bedroom closet as well as additional ammunition in a hall
closet.
On July 7, 2008, Enriquez was charged with possession of a controlled
substance (more than five grams of methamphetamine) with intent to deliver in
possession of a firearm, drug tax stamp violation, possession of a controlled
substance (cocaine), and possession of a firearm.
Enriquez filed a motion to suppress on September 24, 2008. In it, he
asserted that because the search was conducted without a warrant and without
his consent, it was in violation of the Fourth Amendment to the United States
Constitution. Following a hearing on the motion, the district court granted
Enriquez’s motion to suppress. The next day, the State filed a motion to
reconsider, arguing that even without the consent of Enriquez, the search was
valid because it was justified by Ryder’s probation agreement and the plain view
doctrine. On November 7, 2008, the district court found that the officers
conducted a lawful search of the home, no private area of Enriquez’s was
searched, and Enriquez did not object to the search. It then denied the motion to
suppress. 4
Following a jury trial, Enriquez was convicted of each of the charges on
July 22, 2009. He was sentenced to a total term of incarceration not to exceed
fifty-five years.
Enriquez filed a direct appeal, and our supreme court transferred the case
to us. In his direct appeal, Enriquez attacked the validity of the search as being
done without his consent and inconsistent with the plain view doctrine. In State
v. Enriquez, No. 09–1460, 2011 WL 1584114, at *4 (Iowa Ct. App. April 27,
2011), we affirmed his conviction. Enriquez sought further review from the Iowa
Supreme Court, which was denied on January 20, 2012. Procedendo issued
February 3, 2012.
Enriquez filed his application for PCR on May 21, 2013. He argued both
trial counsel and direct appeal counsel were ineffective for failing to “assert,
argue, and preserve for appeal that the search violated the Iowa Constitution”
and “for failing to assert, argue, and preserve for appeal that the Iowa
Constitution should be distinguished from the Federal Constitution on the search
issue.”1 On May 22, 2014, the district court denied Enriquez’s application. He
appeals.
II. Standard of Review.
Generally an appeal from a denial of an application for PCR is reviewed
for corrections of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012). However, when an applicant asserts claims of a constitutional nature, our
1 Enriquez raised other arguments as well, but he has apparently abandoned those claims on appeal. 5
review is de novo. Id. Thus, we review claims of ineffective assistance of
counsel de novo. Id.
III. Discussion.
Enriquez maintains he received ineffective assistance from both trial
counsel and direct appeal counsel because each failed to raise an argument “of
differential treatment of searches and seizures under the Iowa Constitution.”
To prevail on a claim of ineffective assistance of counsel, Enriquez must
prove by a preponderance of the evidence (1) the attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). The same standards of
effectiveness that apply to trial counsel also apply to appellate counsel. Sims v.
State, 295 N.W.2d 420, 424 (Iowa 1980). The claim fails if either element is
lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).
Here, Enriquez has not established that either trial or direct appeal
counsel failed to perform an essential duty. To craft his argument regarding the
Iowa Constitution2, Enriquez relies on our supreme court’s decision State v.
Baldon, 829 N.W.2d 785, 795 (Iowa 2013). In Baldon, our supreme court relied
upon Article I, section 8 of the Iowa Constitution to conclude that prospective
consent to search in a parole agreement “does not represent a voluntary grant of
consent within our constitutional meaning.” 829 N.W.2d at 803.
2 We note that the first time Enriquez laid out his argument regarding the different standard that should have been applied to the Iowa Constitution was in his reply brief on appeal. “We have long held that an issue cannot be asserted for the first time in a reply brief.” Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992). 6
The Baldon ruling was filed over four years after Enriquez’s initial motion
to suppress was decided and approximately two years after his direct appeal was
decided. “We do not expect counsel to anticipate changes in the law, and
counsel will not be found ineffective for lack of clairvoyance.” Millam v. State,
745 N.W.2d 719, 722 (Iowa 2008).
In Baldon, the court explicitly stated:
[W]e largely set aside the cases dealing with probation agreements. These cases are of limited value in analyzing the consent issue in parole agreements because probationers often end up on probation through plea bargaining and, consequently, maintain a vastly superior bargaining power than parolees. Such a probationer has the choice of demanding a trial to seek his or her freedom, which many courts find gives rise to the type of bargaining power that renders probation agreements consensual. Thus, we primarily focus on parolee cases.
Id. at 795.
The court did address probationer’s rights in State v. Short, 851 N.W.2d
474, 506 (Iowa 2014). In Short, law enforcement officers searched the
defendant’s residence. 851 N.W.2d at 477. “Although probation officials were
contacted in connection with the burglary investigation, they did not participate in
the search.” Id. “It [was] undisputed that the search was not a probationary
search, but was instead an investigatory search by law enforcement related to
new crimes.” Id. Ultimately, the supreme court reaffirmed its holding in State v.
Cullison, 173 N.W.2d 533, 537 (Iowa 1970)—namely, that “the warrant
requirement has full applicability to home searches of both probationers and
parolees by law enforcement.” Short, 851 N.W.2d at 506. However, the court
did “not address the legality of home visits or other types of supervision by
probation officers pursuant to their ordinary functions, nor” did they “address the 7
question of whether a probationer may validly consent to warrantless home
searches.” Id. More recently, our supreme court recognized a “special needs”
exception for warrantless searches by parole officers “as authorized by a parole
agreement and not refused by the parolee when done to promote the goals of
parole, divorced from the goals of law enforcement, supported by reasonable
suspicion based on knowledge arriving out of the supervision role . . . .” State v.
King, ___ N.W.2d ___, ___, 2015 WL 3930051, at *18 (Iowa 2015). Again, the
court explicitly did “not address the application of [the] standard to
probationers . . . .” Id.
Here, Enriquez argues his counsel should have claimed that under the
Iowa Constitution, the prospective consent to search in his co-tenant’s probation
agreement did not provide a valid justification for the warrantless search of the
shared home. Enriquez concedes this specific issue has not yet been decided
by the Iowa appellate courts.
We acknowledge the recent line of cases regarding the validity of consent
searches involving parolees and probationers suggests the search of Enriquez’s
and Ryder’s residence could not be premised upon Ryder’s probation agreement
where law enforcement officers join in the initial entry with the probation officer.
However, even if the search could not be premised upon Ryder’s probation
agreement, Ryder could still voluntarily consent to the probation officer’s and law
enforcement officer’s entry into the home, the basis upon which his direct appeal
was denied. We do not believe a probationer’s voluntary consent to law
enforcement officers to enter into a residence is somehow vitiated by the
existence of the probation agreement, nor has Enriquez provided us any 8
authority to the contrary. Even if the supreme court would ultimately reach such
a conclusion, we decline to conclude counsel is ineffective for failing to predict
changes in the law which remain unresolved and open to debate. See Snethen
v. State, 308 N.W.2d 11, 16 (Iowa 1981) (“Counsel need not be a crystal gazer; it
is not necessary to know what the law will become in the future to provide
effective assistance of counsel.”).
Thus, Enriquez has not established that either trial counsel or direct
appeal counsel failed to perform an essential duty, and we affirm the district
court’s denial of his application for postconviction relief.
AFFIRMED.