Varney v. State

475 N.W.2d 646, 1991 Iowa App. LEXIS 317, 1991 WL 194291
CourtCourt of Appeals of Iowa
DecidedJune 25, 1991
Docket89-1764
StatusPublished
Cited by2 cases

This text of 475 N.W.2d 646 (Varney v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Varney v. State, 475 N.W.2d 646, 1991 Iowa App. LEXIS 317, 1991 WL 194291 (iowactapp 1991).

Opinions

DONIELSON, Judge.

Along with his wife and several other defendants, Richard Varney was charged with committing multiple acts of sexual abuse upon his two young daughters. The evidence at trial showed that during the summer of 1985 Varney’s two natural daughters, A.V. and S.V., ages twelve and ten respectively, were repeatedly sexually [648]*648abused by numerous persons on three separate occasions which occurred in the Var-neys’ home. During all three episodes, Varney was present, as were three adult male friends of Varney. Varney’s wife was present on two occasions. The girls were sexually abused (vaginal penetration) by all men then present, including their father. Both girls testified for the State at their parents’ trial. One of the men present during the episodes of abuse also testified for the State, corroborating the testimonies of A.V. and S.V. Expert medical testimony was presented at trial which reflected that each of the child victims had suffered severe scarring and other damage to their genitalia as a result of chronic sexual penetrations.

In 1986, Varney was convicted of six counts of second-degree sexual abuse. He was sentenced to six consecutive twenty-five year prison terms. The convictions and sentences were affirmed by this court in State v. Varney, 423 N.W.2d 907 (Iowa App.1987).

Varney later filed this application for postconviction relief to challenge the imposition of consecutive sentences. The district court denied postconviction relief, and Varney has appealed. We now affirm.

I. Ineffective Assistance Claim. Var-ney’s original application for postconviction relief contended the trial court lacked sufficient evidence to find that Varney was the “originator” of the sexual abuse. The postconviction court notified Varney of its intent to dismiss the application because this claim was not advanced on direct appeal and was therefore waived. See Iowa Code section 663A.6. Varney resisted the dismissal. Ultimately,1 Varney argued that appellate counsel was ineffective in failing to raise the contention; this failure supplying Varney “sufficient reason” to raise the contention for the first time in the postconviction action. See Iowa Code section 663A.8; Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989) (ineffective assistance of appellate counsel may satisfy “sufficient reason” requirement).

A hearing was held on the ineffectiveness claim. Varney presented no additional testimony but did introduce the criminal trial transcript. The district court concluded Varney had failed to establish he had suffered actual prejudice by appellate counsel’s omission of the issue on appeal and dismissed the application.

Varney contends he received ineffective assistance of counsel in his 1987 direct appeal because his appellate attorney did not adequately challenge the imposition of consecutive sentences. He argues the imposition of consecutive sentences was subject to challenge because the record did not support the sentencing court’s stated reason, namely that Varney had been the “originator” of the sexual abuse even though his wife and others were also involved.

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts a violation of constitutional safeguards — such as ineffective assistance of counsel — we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.

In order to prevail on such a claim, appellant must show by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. See Edman v. State, 444 N.W.2d 99, 101 (Iowa App.1989); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). In evaluating counsel’s performance, we presume that counsel acted competently. See Risdal, 404 N.W.2d at 131. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we will follow that course. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984).

Varney has failed to establish a reasonable probability that the result of the ap[649]*649peal would have been different but for counsel’s omission of the asserted contention. From the evidence presented at Var-ney’s trial, the sentencing court could reasonably have concluded that Varney was the “originator” of the sexual abuse upon his daughters. The four men involved in the assaults on the girls were Varney and three of his male friends. Varney’s wife disliked the three friends. There was testimony that Varney requested or initiated the others’ involvement in the abuse. Var-ney was present on-all three occasions; his wife was present on two occasions. There was also testimony that at least twice Var-ney sought and received payment from the men after they had engaged in the sexual assaults. Even if appellate counsel had raised the contention that the “originator” statement by the sentencing court was not supported by direct testimony, we conclude substantial evidence supported the finding. Even had appellate counsel raised the issue, the result of the appeal would not have been different.

The district court properly denied applicant’s claim of ineffective assistance of appellate counsel.

II. Newly-Discovered Evidence. Var-ney also contends he should receive post-conviction relief on the additional ground of newly-discovered evidence. He alleges his daughters have told their grandparents that they lied in their trial testimony. He argues the district court erred by refusing to let him amend his postconviction application to add newly-discovered evidence as an additional ground for relief. He asserts the district court erred by concluding he had failed to make any credible showing of a recantation by the daughters. He also asserts the district court erred by refusing to let him engage in discovery of the daughters to support his requested amendment.

Iowa Code section 663A.2(4) provides that an individual who has been convicted of a public offense may seek post-conviction relief if there is substantial evidence of material facts, not previously presented, which would require vacating the conviction. An applicant alleging newly-discovered evidence as a ground for post-conviction relief must show: (1) the evidence was not discovered until after judgment; (2) the evidence could not have been discovered earlier through the exercise of due diligence; (3) the evidence is material to the issue, not merely cumulative or impeaching; and (4) it would probably change the result if a new trial is granted. Jones v. Scurr, 316 N.W.2d 905, 907 (Iowa 1982).

In order to address Varney’s claim of newly-discovered evidence, we must first address two preliminary issues: (A) whether the district court erred in refusing to amend the postconviction relief application; and (B) whether the district court erred in refusing to allow Varney to question his daughters about the alleged recantation of testimony.

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Related

State v. Jackson
747 N.W.2d 418 (Nebraska Supreme Court, 2008)
Varney v. State
475 N.W.2d 646 (Court of Appeals of Iowa, 1991)

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475 N.W.2d 646, 1991 Iowa App. LEXIS 317, 1991 WL 194291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varney-v-state-iowactapp-1991.