IN THE SUPREME COURT OF IOWA No. 08–0533
Filed July 9, 2010
STATE OF IOWA,
Appellee,
vs.
ANDREW RUSSELL JOHNSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Joel D. Novak, and Robert A. Hutchison, Judges.
Defendant seeks further review of court of appeals’ decision
affirming district court’s denial of his pretrial motions finding substantial
evidence supports his conviction and holding he failed to preserve an
ineffective-assistance-of-counsel claim for postconviction review.
DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT
COURT JUDGMENT AFFIRMED.
Gary D. Dickey, Jr. of Dickey & Campbell Law Firm, P.L.C.,
Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen O. Douglass (until
withdrawal) and then Elisabeth S. Reynoldson, Assistant Attorneys 2
General, John P. Sarcone, County Attorney, and Steven M. Foritano,
Assistant County Attorney, for appellee. 3
TERNUS, Chief Justice.
This matter comes to us on further review of the court of appeals’
decision affirming the second-degree murder conviction of appellant,
Andrew Russell Johnson. The court of appeals rejected Johnson’s claims
that the district court erred in denying his motion to suppress and in
determining he was competent to stand trial. The court of appeals also
held there was substantial evidence in the record to support Johnson’s
conviction. Finally, the court of appeals refused Johnson’s request to
preserve his ineffective-assistance-of-counsel claim based on trial
counsel’s failure to assert that Johnson was a victim of selective
prosecution because Johnson had failed to articulate this claim on
appeal with the requisite specificity.
We granted Johnson’s application for further review to consider
two issues: (1) the court of appeals’ review of the trial court’s
determination of the defendant’s competency to stand trial for correction
of errors of law, and (2) the court of appeals’ decision that Johnson’s
ineffective-assistance-of-counsel claim was too general to preserve. See
Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005) (“On further review,
we can review any or all of the issues raised on appeal or limit our review
to just those issues brought to our attention by the application for
further review.”); State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004)
(declining to exercise discretion on further review to consider all issues
raised on appeal, deciding instead to consider only the ineffective-
assistance-of-counsel claim). Upon our review, we vacate the court of
appeals’ decision on both issues, 1 affirm the district court’s judgment,
1The court of appeals’ decision stands as the final decision with respect to the other issues raised on appeal that we do not address. See Everly v. Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 492 (Iowa 2009). 4
and preserve the defendant’s ineffective-assistance-of-counsel claim for
postconviction relief.
I. Competency to Stand Trial.
A. Standard of Review. Before we review the trial court’s
determination that Johnson was competent to stand trial, we address
Johnson’s contention the court of appeals applied an incorrect standard
of review. The court of appeals reviewed the trial court’s decision on this
issue for correction of errors of law. Johnson asserts review of a
competency decision should be de novo because a claim the defendant is
not competent to stand trial implicates the defendant’s due process
rights. See Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373,
1376, 134 L. Ed. 2d 498, 505–06 (1996).
This issue was addressed in a recent decision in which we held the
constitutional basis of a claim the defendant is not competent to be tried
requires a de novo review on appeal. State v. Lyman, 776 N.W.2d 865,
873 (Iowa 2010). Therefore, we will review the trial court’s decision on
the issue of the defendant’s competency de novo.
B. Applicable Legal Principles. In Lyman, we reviewed the legal
principles that govern a defendant’s claim of incompetency to stand trial:
At common law, the State could not try a criminal defendant if that person’s mental condition was such that he or she lacked the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing a defense. The Supreme Court has stated the test to determine if a criminal defendant is competent to stand trial is whether the person “ ‘has sufficient present ability to consult with [counsel] with a reasonable degree of rational understanding—and whether [the person] has a rational as well as factual understanding of the proceedings.’ ” In Iowa, we define the test as whether “the defendant is suffering from a mental disorder which prevents the defendant from appreciating the charge, understanding the proceedings, or assisting effectively in the defense.” The common thread running through these tests is that a criminal defendant 5 must be able to effectively assist counsel in his or her defense. We presume a defendant is competent to stand trial. The defendant has the burden of proving his or her incompetency to stand trial by a preponderance of the evidence. If the evidence is in equipoise, the presumption of competency prevails.
Id. at 873–84 (quoting Dusky v. United States, 362 U.S. 402, 402, 80
S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960) and Iowa Code § 812.3(1)
(2005)) (citations omitted).
Here, the defendant does not contest his ability to appreciate the
charge against him and understand the proceedings. Rather, he asserts
his borderline personality disorder prevented him from assisting
effectively in his defense.
C. Discussion. About two months before Johnson’s scheduled
trial on a first-degree murder charge, he requested a hearing on his
competency to stand trial. A hearing was held, at which both parties
presented expert testimony.
Johnson’s expert, psychologist Dr. Jeffrey Kline, conducted a
thorough review of Johnson’s long history of treatment for mental
disorders, administered various psychological tests to Johnson, and
extensively interviewed the defendant. Dr. Kline opined that Johnson
suffered from a borderline personality disorder that creates “an almost
constant interference” with his relationship with his attorneys.
Johnson’s illness, according to Dr. Kline, manifests itself in emotional
variability and paranoia. Dr. Kline noted that Johnson exhibited distrust
of his lawyers and often thought they were conspiring against him. As a
result, Dr. Kline believed Johnson “[a]t times . . . may not be able to
consider rationally the advice of counsel.” Dr. Kline concluded “Johnson 6
is unable to effectively assist in his own defense and therefore [is]
incompetent to proceed in this matter.”
The State’s expert, psychiatrist Dr. James Dennert, spent less time
in assessing Johnson’s competency to stand trial, but reviewed pertinent
documents, including Dr. Kline’s reports, and interviewed the defendant
for several hours. Dr. Dennert opined that Johnson did not suffer from a
mental illness that would prevent him from assisting in his own defense.
Dr. Dennert’s opinion was based to some extent on his conclusion that “a
good deal of what [Johnson] told [him] is best interpreted as being self-
serving.” Dr. Dennert believed Johnson repeated to him and others what
he had read in Dr. Kline’s reports and elsewhere “as a means of trying to
help his case.” Dr. Dennert concluded Johnson was “perfectly capable of
assisting his attorneys effectively.” He noted Johnson may not choose to
do so, but his failure to assist his attorneys was a matter of choice.
We also have the benefit of the trial court’s observations of the
defendant at the competency hearing. In concluding Johnson was
competent, the trial court noted Johnson’s demeanor in the courtroom
was appropriate, and he consulted with one or both of his attorneys at
various times during the proceeding. The court also observed in its
ruling that there were no professional statements by the defendant’s
attorneys or other evidence that Johnson’s attorneys were unable to
communicate with him “regarding his case and any other issues in a
rational and logical manner.”
After reviewing the record, we are persuaded by the testimony of
Dr. Dennert and the trial court’s observations and conclude that
Johnson failed to prove by a preponderance of the evidence that he was
not competent to stand trial. Accordingly, we affirm the decision of the
trial court on this issue. 7
II. Ineffective-Assistance-of-Counsel Claim.
A. Background Facts and Proceedings. Johnson was charged
with first-degree murder in the death of Matthew Stegman. Several
individuals participated to some degree in Stegman’s murder. Of those
involved, all but Alexandra Habeck were charged with first-degree
murder. On appeal, Johnson claims the prosecution’s decision not to
charge Habeck constituted a violation of his right to equal protection
under the United States Constitution and the Iowa Constitution. See
generally Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7
L. Ed. 2d 446, 453 (1962) (holding selectivity in prosecution violates the
Equal Protection Clause when the decision was “deliberately based upon
an unjustifiable standard such as race, religion, or other arbitrary
classification”). Johnson claims that he was less culpable than Habeck,
given that Johnson did not assault or kill the victim and left the scene
during the commission of the murder while Habeck actively assisted in
the physical assault of the victim and held the shirts of two other
defendants to keep blood from getting on their clothes during the
murder.
Johnson’s trial counsel did not make a selective-prosecution claim
in the district court. On appeal, Johnson’s appellate counsel suggested
in his brief that trial counsel’s failure to raise this claim could have
resulted from a belief that the county attorney’s charging decisions were
not yet final or could constitute ineffective assistance of counsel. In light
of this uncertainty, appellate counsel asserted the record was not
sufficient to determine on direct appeal whether trial counsel rendered
ineffective assistance and this claim should be preserved for a
postconviction-relief proceeding. The court of appeals refused to
preserve the claim on the ground that it was “too general in nature” 8
because the defendant had not specified “which, if any, impermissible
classification the prosecutor allegedly based the charging decision on,
nor [had the defendant made] any other specific argument with regard to
this issue.”
B. Governing Legal Principles. Iowa Code chapter 822 (2007)
provides a procedure for persons “convicted of, or sentenced for, a public
offense” to assert a claim for postconviction relief. Iowa Code § 822.2(1).
This chapter includes a claim/issue preservation provision that states:
All grounds for relief available to an applicant under this chapter must be raised in the applicant’s original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
Id. § 822.8. We have interpreted this provision to require a
postconviction-relief applicant to raise any ineffective-assistance claims
on direct appeal or “show sufficient reasons why any ground for relief
asserted in a postconviction relief petition was not previously asserted on
direct appeal.” Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999); accord
Bledsoe v. State, 257 N.W.2d 32, 33–34 (Iowa 1977). If the defendant
fails to prove a sufficient reason for failing to raise a claim on direct
appeal, he is precluded from asserting the claim in a postconviction
proceeding. Bugley, 596 N.W.2d at 896; Bledsoe, 257 N.W.2d at 34.
Not only have our cases required that ineffective-assistance-of-
counsel claims be raised on direct appeal, our cases have also required a
fairly specific description of such claims before they would be preserved
for a postconviction-relief proceeding. In order to preserve an ineffective- 9
assistance claim, a defendant has been required to make a sufficient
record on direct appeal supporting the legitimacy of the claim:
To preserve claims of ineffective assistance of counsel for postconviction review, a defendant must make some minimal showing from which this court can assess the potential viability of his or her claim. Such a showing should not only demonstrate some need for further development of the record, but should indicate why the challenged actions are believed to have been ineffective and what prejudice is likely to have resulted from them. The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings.
State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (citations omitted);
accord State v. White, 337 N.W.2d 517, 519 (Iowa 1983); cf. Dunbar v.
State, 515 N.W.2d 12, 15 (Iowa 1994) (applying similar specificity
requirement to claims of ineffective assistance of postconviction-relief
counsel made in appeal of adverse judgment in postconviction-relief
action). In Wagner, we concluded that, because the defendant had not
provided “definitive instances of possible prejudice flowing from counsel’s
challenged actions,” the defendant had failed to raise a “viable claim of
ineffective assistance.” 410 N.W.2d at 215. Therefore, we held, there
was “no basis for preserving these issues for postconviction review.” Id.
Subsequently, in 2004, the legislature enacted Iowa Code section
814.7. 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7
(2005)). That section provides:
814.7. Ineffective assistance claim on appeal in a criminal case. 1. An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822, except as otherwise provided in this section. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes. 2. A party may, but is not required to, raise an ineffective assistance claim on direct appeal from the 10 criminal proceedings if the party has reasonable grounds to believe that the record is adequate to address the claim on direct appeal. 3. If an ineffective assistance of counsel claim is raised on direct appeal from the criminal proceedings, the court may decide the record is adequate to decide the claim or may choose to preserve the claim for determination under chapter 822.
Iowa Code § 814.7 (emphasis added). We have held section 814.7 applies
retroactively to all criminal cases. See Hannan v. State, 732 N.W.2d 45,
50–51 (Iowa 2007).
In State v. Straw, 709 N.W.2d 128 (Iowa 2006), we summarized the
law set forth in this new statute, essentially concluding the statute
means what it says:
An ineffective-assistance-of-counsel claim in a criminal case “need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.” Iowa Code § 814.7(1) (2007). The defendant may raise the ineffective assistance claim on direct appeal if he or she has reasonable grounds to believe the record is adequate to address the claim on direct appeal. Id. § 814.7(2). If an ineffective-assistance-of-counsel claim is raised on direct appeal from the criminal proceedings, we may decide the record is adequate to decide the claim or may choose to preserve the claim for postconviction proceedings. Id. § 814.7(3).
Straw, 709 N.W.2d at 133. As we later stated in Hannan, “[s]ection
814.7 allows a defendant to raise ineffective-assistance-of-counsel claims
for the first time in [postconviction-relief] proceedings.” 732 N.W.2d at
50. Thus, section 814.7 essentially nullified this court’s interpretation of
section 822.8 in Bledsoe and Bugley that ineffective-assistance claims
must first be raised on direct appeal.
Notwithstanding legislative abrogation of the preservation
requirement as it applied to direct appeals, we stated in a 2007 decision
that “[c]laims of ineffective assistance of counsel on direct appeal are
preserved for postconviction relief only if the defendant makes a minimal 11
showing of the potential viability of the claim.” State v. Alloway, 707
N.W.2d 582, 587 (Iowa 2006) (emphasis added) (citing Wagner, 410
N.W.2d at 215). Because the defendant in Alloway had failed “to
sufficiently articulate the prejudice prong of his claim,” we refused to
preserve the claim for a postconviction-relief action. Id. We did not
consider the effect of section 814.7 on the specificity requirement we had
imposed in Wagner and applied in Alloway. The court of appeals, in its
opinion in the present case, questioned the continued viability of the
specificity requirement in light of the adoption of section 814.7, but
believed it was constrained to follow Alloway.
Upon our examination of this issue, we overrule our holding in
Alloway that a defendant is required to demonstrate the potential
viability of any ineffective-assistance claim raised on direct appeal in
order to preserve the claim for postconviction relief. We think it would be
inconsistent with the rule that a defendant is not required to raise
ineffective-assistance claims on direct appeal in order to preserve such
claims for postconviction relief, yet hold that such claims cannot be
preserved when they are raised in a general or conclusory manner on
direct appeal. Moreover, section 814.7(3) clearly gives the appellate court
only two choices when an ineffective-assistance claim is raised on direct
appeal: (1) “decide the record is adequate to decide the claim,” or (2)
“choose to preserve the claim for determination under chapter 822.”
Iowa Code § 814.7(3). Based on the provisions of section 814.7, we hold
defendants are no longer required to raise ineffective-assistance claims
on direct appeal, and when they choose to do so, they are not required to
make any particular record in order to preserve the claim for
postconviction relief. 12
Of course, if a defendant wishes to have an ineffective-assistance
claim resolved on direct appeal, the defendant will be required to
establish an adequate record to allow the appellate court to address the
issue. If the defendant requests that the court decide the claim on direct
appeal, it is for the court to determine whether the record is adequate
and, if so, to resolve the claim. If, however, the court determines the
claim cannot be addressed on appeal, the court must preserve it for a
postconviction-relief proceeding, regardless of the court’s view of the
potential viability of the claim.
C. Discussion. We now consider Johnson’s claim of ineffective
assistance of counsel based on trial counsel’s failure to make a claim of
selective prosecution. Johnson does not request that his claim of
ineffective assistance of counsel be resolved on direct appeal, as he
acknowledges further development of the record on this issue is
necessary. Therefore, consistent with Johnson’s right under section
814.7(1) to forego raising his ineffective-assistance-of-counsel claim on
direct appeal and as required by section 814.7(3), we preserve the issue
of trial counsel’s ineffective assistance regarding Johnson’s selective-
prosecution claim for a postconviction-relief proceeding.
III. Disposition.
We vacate that part of the court of appeals’ decision addressing the
defendant’s claims that (1) the trial court erred in finding him competent
to stand trial, and (2) his trial counsel rendered ineffective assistance in
failing to raise a claim of selective prosecution. Upon our de novo review
of the trial court’s competency ruling, we affirm. Because the record is
not sufficient on appeal to resolve Johnson’s ineffective-assistance-of-
counsel claim, we preserve that claim for postconviction relief. 13
COURT OF APPEALS DECISION VACATED IN PART; DISTRICT
All justices concur except Streit, J., who takes no part.