State of Iowa v. Cornelius Gully

• Court: Court of Appeals of Iowa
• Decided: August 4, 2021
• Docket: 19-1624
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1624 Filed August 4, 2021

STATE OF IOWA, Plaintiff-Appellee,

vs.

CORNELIUS GULLY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Gina Badding,

Judge.

A defendant appeals his conviction for first-degree burglary. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., Greer, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

TABOR, Presiding Judge.

A jury convicted Cornelius Gully of first-degree burglary. Now Gully

contends counsel was ineffective in failing to object to a jury instruction. Because

we lack the authority to decide ineffective-assistance-of-counsel claims on direct

appeal, we affirm.

The State accused Gully of breaking into his ex-girlfriend’s home and

assaulting her. At trial, the prosecutor played a phone call in which Gully asked

the victim to drop the charges. Gully also said she “deserved it.” The court

submitted an instruction allowing the jury to consider Gully’s earlier statements “as

if they had been made at this trial.” Defense counsel did not object.

The jury found Gully guilty as charged. The court sentenced him in

September 2019. He timely appealed. The following June, the supreme court

decided an almost identical jury instruction was “a misstatement of the law.” State

v. Shorter, 945 N.W.2d 1, 11 (2020) (noting faulty instruction may not be

“necessarily prejudicial in a given case”). On appeal, Gully contends his trial

counsel was constitutionally ineffective in failing to object to that instruction. The

State concedes the instruction was wrong. Yet the State argues we cannot

address Gully’s claim. We agree.

A legislative amendment removed our authority to decide

ineffective-assistance-of-counsel claims on direct appeal. Iowa Code § 814.7

(2019). Instead, such claims “shall be determined by filing an application for

postconviction relief pursuant to chapter 822.” Id. Because of that amendment,

Gully must wait for a postconviction-relief court to hear his argument. 3

Recognizing our limited authority, Gully contends section 814.7 violates his

right to effective assistance of counsel and improperly restricts the role and

jurisdiction of Iowa appellate courts. He raises both a separation-of-powers

argument and a jurisdictional argument. After briefing concluded in this case, the

supreme court rejected those arguments. See State v. Tucker, 959 N.W.2d 140,

152–53 (Iowa 2021); State v. Jordan, 959 N.W.2d 395, 399 (Iowa 2021) (clarifying

that amended section 814.7 “does not limit jurisdiction; it limits the authority of

Iowa’s appellate courts to resolve ineffective-assistance claims on direct

appeal”). The supreme court also rebuffed a claim that section 814.7 violates the

right to counsel. See State v. Treptow, 960 N.W.2d 98, 107–08 (Iowa 2021). So

Gully’s constitutional arguments fail.

As a final fallback, Gully contends that if we cannot decide his

ineffective-assistance claim on direct appeal, we should adopt and reverse on plain

error. See, e.g., Fed. R. Crim. P. 52(b) (allowing an appellate court to consider

“plain error that affects substantial rights . . . even though it was not brought to the

[district] court’s attention”). But that argument has not gained traction with our

supreme court either. See Treptow, 960 N.W.2d at 109 (collecting cases).

Because our supreme court has foreclosed each of Gully’s contentions, we

affirm the conviction. Gully’s ineffective-assistance-of-counsel claim must await a

postconviction-relief action.

AFFIRMED.