IN THE COURT OF APPEALS OF IOWA
No. 22-1633 Filed August 30, 2023
STEPHEN CRAIG LEONARD, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Clay County, Don E. Courtney,
Judge.
Stephen Craig Leonard appeals the denial of his application for
postconviction relief. AFFIRMED.
Elizabeth K. Elsten, Spirit Lake, for appellant.
Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Ahlers and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Stephen Leonard appeals the district court’s denial of his application for
postconviction relief (PCR), contending his trial counsel was ineffective in advising
him to waive trial by a jury, in failing to secure an expert witness, and in failing to
depose one of the State’s witnesses. Upon review, we affirm.
I. Background Facts and Proceedings.
On August 22, 2018, Clay County Deputy Sheriff Heck served a civil
summons on Leonard at his home. During this encounter, Heck stated he detected
the smell of “raw marijuana” emanating from the residence and immediately
applied for a search warrant. Upon grant of the warrant, authorities executed the
search later that same night. An emptied pill bottle containing marijuana, a second
bottle with marijuana residue, and marijuana seeds were found as a result.
Leonard was later charged with possession of a controlled substance, marijuana,
third or subsequent offense.
During the proceedings, Leonard filed two pro se pretrial motions: (1) to
suppress the evidence obtained from the search and (2) for appointment of an
expert witness to testify at a suppression hearing. He alleged evidence was
obtained in violation of his constitutional rights; more specifically, he asserted the
search warrant application and Deputy Heck’s accompanying affidavit did not
satisfy probable cause. The trial court denied both motions, determining that
appointing an expert would deviate from the four corners of the warrant application
and was not a necessity, and further determining that Deputy Heck’s affidavit,
combined with his qualifications and experience, were a sufficient basis for 3
probable cause. Following these pretrial motions, Leonard applied for court-
appointed counsel, and trial counsel entered his appearance.
Leonard waived his right to a jury trial, and a trial on the minutes occurred
on July 1, 2019. Leonard was ultimately convicted, and the conviction affirmed
upon appeal. See State v. Leonard, No. 19-1863, 2020 WL 4201807, at *2 (Iowa
Ct. App. Jul. 22, 2020). He promptly filed a PCR application, contending his trial
counsel was ineffective in advising him to waive trial by a jury, in failing to secure
an expert witness, and in failing to depose one of the State’s witnesses. This
application was denied and now comes before us on appeal.
II. Review.
“We ordinarily review . . . PCR applications for corrections of errors at law.”
Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019) (citations omitted). But because
ineffective-assistance-of-counsel claims raise constitutional issues, we review the
denial of PCR applications raising such claims de novo. Id.
III. Discussion.
On appeal, Leonard contends his trial counsel was ineffective because he
breached three essential duties: (1) counsel allowed a jury trial waiver that was not
voluntary and intelligent, (2) counsel failed to reasonably investigate available
defenses by not requesting an expert witness, and (3) counsel failed to depose a
key witness, Deputy Heck. “To prevail on an ineffective assistance of counsel
claim, the claimant must satisfy the two-prong test by proving that his trial counsel
failed to perform an essential duty and prejudice resulted.” State v. Majors, 940
N.W.2d 372, 391 (Iowa 2020) (citation omitted) (describing the two-prong test for
ineffective assistance of counsel claims set out in Strickland v. Washington, 466 4
U.S. 668, 687 (1984)). Both elements must be proven for the claim to be
successful. Id. For the first prong, we presume counsel performed competently
unless proven otherwise by a preponderance of the evidence, measured
objectively against the prevailing professional norms. Id. To establish the
prejudice required for the second prong, “the claimant must prove by a reasonable
probability that, but for counsel’s failure to perform an essential duty, the result of
the proceeding would have been different.” Id. (citation omitted). All issues were
properly preserved and we address each in turn.
A. Waiver of Jury Trial.
First, Leonard argues trial counsel failed to fully advise him of his right to a
jury trial, resulting in a waiver that was not voluntary or intelligent. Additionally, he
contends trial counsel used coercion to obtain a jury trial waiver. The right to a
jury trial must be strictly observed absent a voluntary and intelligent waiver. See
State v. Feregrino, 756 N.W.2d 700, 705 (Iowa 2008); see also Iowa R. Crim.
P. 2.17(1). This requires both a written waiver and a court-conducted colloquy
advising a defendant of their rights. Feregrino, 756 N.W.2d at 705-06 (citing State
v. Liddell, 672 N.W.2d 805 (Iowa 2003)).
Leonard underwent questioning on the record before the written waiver was
accepted. The district court found Leonard fully understood his rights and was
motivated to waive them for strategic purposes. Leonard’s decision to waive was
motivated by the ability to appeal the validity of the search warrant. We agree with
the district court that Leonard’s waiver was voluntary and intelligent. Trial counsel
has no affirmative duty beyond the constitutional and statutory requirements to 5
ensure that the waiver is knowing, intelligent, and voluntary. Therefore, a breach
of duty has not been established on this basis.
We also find no evidence of coercive tactics used to obtain a waiver.
Leonard’s reasoning for this claim is a statement made by trial counsel on the
record: “I’m not going to show up here for a three-day jury trial when I know all that
evidence is coming in, and for the most part know what the verdict is going to be.”
In contrast, the State counterargues that the statement was taken out of context.
Instead, it was trial counsel’s response when asked to explain his strategy for
recommending a trial on the minutes. Absent additional evidence of coercion,
Leonard similarly fails to satisfy his burden of establishing breach of an essential
duty.
Even if Leonard had established breach, we find he has failed to establish
prejudice. Despite later testimony at the PCR hearing that Leonard regretted the
decision to waive a trial by jury, this is insufficient to establish actual prejudice, and
his burden is similarly left unmet. We reject his ineffective-assistance challenge
on this theory.
B. Investigation and Expert Witness Testimony.
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IN THE COURT OF APPEALS OF IOWA
No. 22-1633 Filed August 30, 2023
STEPHEN CRAIG LEONARD, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Clay County, Don E. Courtney,
Judge.
Stephen Craig Leonard appeals the denial of his application for
postconviction relief. AFFIRMED.
Elizabeth K. Elsten, Spirit Lake, for appellant.
Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Ahlers and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Stephen Leonard appeals the district court’s denial of his application for
postconviction relief (PCR), contending his trial counsel was ineffective in advising
him to waive trial by a jury, in failing to secure an expert witness, and in failing to
depose one of the State’s witnesses. Upon review, we affirm.
I. Background Facts and Proceedings.
On August 22, 2018, Clay County Deputy Sheriff Heck served a civil
summons on Leonard at his home. During this encounter, Heck stated he detected
the smell of “raw marijuana” emanating from the residence and immediately
applied for a search warrant. Upon grant of the warrant, authorities executed the
search later that same night. An emptied pill bottle containing marijuana, a second
bottle with marijuana residue, and marijuana seeds were found as a result.
Leonard was later charged with possession of a controlled substance, marijuana,
third or subsequent offense.
During the proceedings, Leonard filed two pro se pretrial motions: (1) to
suppress the evidence obtained from the search and (2) for appointment of an
expert witness to testify at a suppression hearing. He alleged evidence was
obtained in violation of his constitutional rights; more specifically, he asserted the
search warrant application and Deputy Heck’s accompanying affidavit did not
satisfy probable cause. The trial court denied both motions, determining that
appointing an expert would deviate from the four corners of the warrant application
and was not a necessity, and further determining that Deputy Heck’s affidavit,
combined with his qualifications and experience, were a sufficient basis for 3
probable cause. Following these pretrial motions, Leonard applied for court-
appointed counsel, and trial counsel entered his appearance.
Leonard waived his right to a jury trial, and a trial on the minutes occurred
on July 1, 2019. Leonard was ultimately convicted, and the conviction affirmed
upon appeal. See State v. Leonard, No. 19-1863, 2020 WL 4201807, at *2 (Iowa
Ct. App. Jul. 22, 2020). He promptly filed a PCR application, contending his trial
counsel was ineffective in advising him to waive trial by a jury, in failing to secure
an expert witness, and in failing to depose one of the State’s witnesses. This
application was denied and now comes before us on appeal.
II. Review.
“We ordinarily review . . . PCR applications for corrections of errors at law.”
Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019) (citations omitted). But because
ineffective-assistance-of-counsel claims raise constitutional issues, we review the
denial of PCR applications raising such claims de novo. Id.
III. Discussion.
On appeal, Leonard contends his trial counsel was ineffective because he
breached three essential duties: (1) counsel allowed a jury trial waiver that was not
voluntary and intelligent, (2) counsel failed to reasonably investigate available
defenses by not requesting an expert witness, and (3) counsel failed to depose a
key witness, Deputy Heck. “To prevail on an ineffective assistance of counsel
claim, the claimant must satisfy the two-prong test by proving that his trial counsel
failed to perform an essential duty and prejudice resulted.” State v. Majors, 940
N.W.2d 372, 391 (Iowa 2020) (citation omitted) (describing the two-prong test for
ineffective assistance of counsel claims set out in Strickland v. Washington, 466 4
U.S. 668, 687 (1984)). Both elements must be proven for the claim to be
successful. Id. For the first prong, we presume counsel performed competently
unless proven otherwise by a preponderance of the evidence, measured
objectively against the prevailing professional norms. Id. To establish the
prejudice required for the second prong, “the claimant must prove by a reasonable
probability that, but for counsel’s failure to perform an essential duty, the result of
the proceeding would have been different.” Id. (citation omitted). All issues were
properly preserved and we address each in turn.
A. Waiver of Jury Trial.
First, Leonard argues trial counsel failed to fully advise him of his right to a
jury trial, resulting in a waiver that was not voluntary or intelligent. Additionally, he
contends trial counsel used coercion to obtain a jury trial waiver. The right to a
jury trial must be strictly observed absent a voluntary and intelligent waiver. See
State v. Feregrino, 756 N.W.2d 700, 705 (Iowa 2008); see also Iowa R. Crim.
P. 2.17(1). This requires both a written waiver and a court-conducted colloquy
advising a defendant of their rights. Feregrino, 756 N.W.2d at 705-06 (citing State
v. Liddell, 672 N.W.2d 805 (Iowa 2003)).
Leonard underwent questioning on the record before the written waiver was
accepted. The district court found Leonard fully understood his rights and was
motivated to waive them for strategic purposes. Leonard’s decision to waive was
motivated by the ability to appeal the validity of the search warrant. We agree with
the district court that Leonard’s waiver was voluntary and intelligent. Trial counsel
has no affirmative duty beyond the constitutional and statutory requirements to 5
ensure that the waiver is knowing, intelligent, and voluntary. Therefore, a breach
of duty has not been established on this basis.
We also find no evidence of coercive tactics used to obtain a waiver.
Leonard’s reasoning for this claim is a statement made by trial counsel on the
record: “I’m not going to show up here for a three-day jury trial when I know all that
evidence is coming in, and for the most part know what the verdict is going to be.”
In contrast, the State counterargues that the statement was taken out of context.
Instead, it was trial counsel’s response when asked to explain his strategy for
recommending a trial on the minutes. Absent additional evidence of coercion,
Leonard similarly fails to satisfy his burden of establishing breach of an essential
duty.
Even if Leonard had established breach, we find he has failed to establish
prejudice. Despite later testimony at the PCR hearing that Leonard regretted the
decision to waive a trial by jury, this is insufficient to establish actual prejudice, and
his burden is similarly left unmet. We reject his ineffective-assistance challenge
on this theory.
B. Investigation and Expert Witness Testimony.
Next, Leonard contends trial counsel failed to reasonably investigate and
re-assert the suppression issue at trial. The test we use is based on “reasonable
professional judgments” with “a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. The entirety of the circumstances is
considered to make this determination. Id. Leonard asserts an expert was
necessary to determine the human’s ability to smell raw marijuana kept in a closed
container in the rear of a residence. But State-expensed experts are only 6
appointed upon a showing of necessity, see Iowa R. Crim. P. 2.20(4), and we
agree with the district court that no expert was necessary here. Leonard’s
arguments focus on the prior suppression ruling, not on trial counsel’s alleged
failures once appointed. There is no duty to raise issues without legal merit. See
State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009). As the suppression issue had
been decided and preserved for later appeal, no other meritorious claims were left
to be made. Moreover, because the decision to not request an expert was
strategic, weight is given to trial counsel’s reasonable professional judgment.
State v. Harrison, 914 N.W.2d 178, 206 (Iowa 2019) (citing Carroll, 767 N.W.2d
at 645.). Leonard has not adequately established that his trial counsel breached
an essential duty.
There is also no prejudicial impact. Leonard argues the suppression ruling
determined the admissibility of the marijuana itself; its exclusion would then have
an immediate effect on the case outcome and result in prejudice. But this issue
was already preserved for appeal and introduction of an expert would likely not
change the outcome. Therefore, Leonard’s ineffective-assistance claim fails in this
regard.
C. Deposition of Deputy Heck.
Leonard’s final claim is that trial counsel was ineffective for failing to depose
Deputy Heck, a key witness. He implies refusal to depose requires some
affirmatively stated strategic purpose. Using the same Strickland analysis, we
disagree. Whether to take a deposition is a strategy-grounded decision, primarily
based on its utility at trial. Kellogg v. State, 288 N.W.2d 561, 564 (Iowa 1980).
Leonard again fails to satisfy his burden. There is no pervasive duty by trial 7
counsel to defend their choice of strategy not to take a deposition. Rather, the
exercise of judgment is given a “strong presumption” in our review. Harrison, 914
N.W.2d at 206 (citation omitted). Here, trial counsel employed professional
reasoning in his decision to not take the deposition, and we give such a decision
deferential weight. Accordingly, we find no breach of essential duty has been
established. Further, actual prejudice cannot be found solely based on the lack of
opposition at the suppression hearing, as determined previously. We therefore
reject Leonard’s third and final ineffective-assistance claim.
IV. Disposition
Because Leonard failed to prove either breach of an essential duty by his
trial counsel or prejudice, we find he did not establish ineffective assistance of
counsel in connection with any of the three grounds asserted in this appeal.
Accordingly, we affirm the district court’s denial of Leonard’s PCR application.
AFFIRMED.