Opinion
No. 3-155 / 02-0474
Filed May 14, 2003
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Phillip McFarland appeals from the denial of his postconviction relief application. AFFIRMED.
Paul Rosenberg of Paul Rosenberg Associates, P.C. Des Moines, for appellant.
Phillip McFarland, Anamosa, for appellant pro se.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Phillip McFarland appeals from the order denying his postconviction relief application. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In April of 1997, the State charged Phillip McFarland with various offenses in four separate trial informations based on activities undertaken in furtherance of McFarland's "bounty hunting" business. In case number FE112041, McFarland was found not guilty of first degree burglary, but was found guilty of assault. Thereafter case number FE111646 (the "Leach case") proceeded to trial and the jury found McFarland guilty of second-degree burglary. In case numbers SR111588 and FE111876, McFarland entered Alfordpleas to conspiracy to commit burglary, assault causing bodily injury, two counts of false imprisonment, and impersonating a public official.
We summarized the facts of the Leach case in State v. McFarland, 598 N.W.2d 318, 319 (Iowa Ct.App. 1999), Phillip McFarland's direct appeal. We will reproduce them here:
Philip McFarland and Edward Green claimed to be bounty hunters who pursued individuals who failed to appear at criminal proceedings after obtaining bail bonds. In March 1997, they allegedly received a tip that Maurecio Gomez had skipped bail and was staying at a mobile home park in Des Moines. On March 18, 1997, sometime between 1:30 and 2:30 a.m., McFarland and Green arrived at the mobile home of Wendell and Sandy Leach. The Leaches and three of their four children were home.
McFarland began pounding on the front door of the Leach mobile home. When Wendell Jr. asked what was going on, McFarland broke the front door open and barged into the home. In the process, the door flew open and Wendell Jr. was knocked against a closet. McFarland said he was a bounty hunter and stated he was "looking for some Mexicans." Sandy and Wendell argued with McFarland about his being in their home. McFarland threatened to "smack" Sandy if she did not "shut up." When McFarland realized Gomez was not connected with the Leaches, he apologized, left the home, and went to the trailer next door.
McFarland, 598 N.W.2d at 319.
McFarland filed an appeal of the judgment in the Leach case and a separate appeal of the judgments in case numbers SR111588 and FE111876. In the direct appeal of the Leach case, we affirmed, holding (1) the State proved with sufficient evidence that McFarland acted with the specific intent necessary to sustain a second-degree burglary conviction, and (2) a citizen's arrest defense cannot be used as an affirmative defense to burglary or assault when the unlawful entry or force is used against an innocent third person. Id. at 322. McFarland's convictions in case numbers SR111588 and FE111876 were affirmed as well, following a remand for resentencing.
McFarland subsequently filed a postconviction relief application in which he claimed he received ineffective assistance of trial and appellate counsel, his guilty pleas were involuntary, the State failed to abide by a plea agreement, and his right to be present at all stages of the trial was violated when he was excluded from discussions between the attorneys and the trial judge. In a ruling filed on March 6, 2002, the district court rejected all of these claims and denied the relief requested by McFarland, who now appeals.
II. INEFFECTIVE ASSISTANCE OF COUNSEL.
We typically review postconviction relief proceedings on error. Osborn v. State , 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id . Thus, we review claims of ineffective assistance of counsel de novo. State v. Mapp , 585 N.W.2d 746, 747 (Iowa 1998). In addition, we give weight to the lower court's findings concerning witness credibility. Taylor v. State , 352 N.W.2d 683, 687 (Iowa 1984). Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Berryhill v. State , 603 N.W.2d 243, 245 (Iowa 1999). The applicant must also prove he was actually prejudiced by the alleged error. Id. To prove prejudice, the applicant must show that the alleged error actually and substantially disadvantaged him. Polly v. State , 355 N.W.2d 849, 855 (Iowa 1984). The ineffective assistance of appellate counsel may constitute a sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Berryhill , 603 N.W.2d at 245. We judge ineffective assistance of appellate counsel claims against the same two-pronged test utilized for ineffective assistance of trial counsel claims. Id.
A. Failure to Present Evidence Supporting Bounty Hunting Theory.
The district court rejected McFarland's claim that his direct appeal counsel was ineffective in failing to raise various issues related to his contention that, as a "bounty hunter," his actions possessed some "authority and legitimacy." In particular, he now contends counsel should have rebutted testimony that he lacked the authority to bounty hunt, and that counsel should have raised the case of Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1872) as common law authority for bounty hunting. We conclude counsel breached no duty to raise this issue in that it would have been meritless. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (trial counsel need not raise a meritless issue). Even if Taylor v. Taintor stands for the proposition a bounty hunter possesses some kind of common law authority to effect the arrest of a bail jumper, that principle would not aid McFarland. In the Leach case, McFarland entered the home of a totally innocent third-person who was not subject to arrest. Taylor v. Taintor certainly does not lend support for the proposition a "bounty hunter" has some authority to break into the home of an innocent party and assault him or her. Accordingly, much like we held in State v. McFarland , 598 N.W.2d at 322 — that a citizen's arrest cannot be used as an affirmative defense to burglary or assault when the entry or force is used against an innocent person — we conclude here McFarland cannot assert a defense based on Taylor v. Taintor when the victim is an innocent third party. Thus, we conclude McFarland's trial and direct appeal counsel were not ineffective in failing to raise this issue.
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and . . . may break and enter his home for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner . . . . Taylor v. Taintor, 83 U.S. (16 Wall.) at 371, 21 L.Ed. at 290.
B. Failure to Identify and Subpoena Witnesses.
On appeal, McFarland contends the postconviction court erred in failing to conclude trial counsel was ineffective by not securing testimony from certain witnesses. Those witnesses include (1) law enforcement officers that McFarland allegedly had contact with in conjunction with his bounty hunting business, (2) officers who investigated the Leach case but apparently concluded no crime had been committed by McFarland, and (3) a member of the Leach family whose testimony would allegedly tend to prove McFarland did not break into the house. We will address each in turn. To prove prejudice from a trial attorney's failure to investigate or subpoena potential witnesses, McFarland must show that the uncalled witnesses would have testified at trial and that their testimony would have probably changed the outcome of the trial. Stewart v. Nix , 31 F.3d 741. 744 (8th Cir. 1994).
1. Officers with knowledge of his bounty hunting business.
McFarland asserted below his direct appeal counsel was ineffective in failing to argue trial counsel should have subpoenaed law enforcement officers who, he claims, would have testified that they had previous contacts with McFarland in the course of his work as a bounty hunter. However, even if we assume law enforcement officers knew McFarland was working in that capacity, we find no authority for the proposition that such officers could have granted "permission" or "authority" to forcibly enter an innocent third party's home and commit an assault therein. Thus, we conclude McFarland has failed to meet his burden to prove "there is a reasonable probability that, but for the counsel's unprofessional error, the result of the proceeding would have been different" if the officers had been called. See State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).
2. Officers who initially investigated the Leach case.
McFarland contends trial counsel had a duty to subpoena police officers who investigated the Leach incident but left the scene after determining no crime had been committed. McFarland presented no testimony from these officers in the postconviction record and asks us to speculate about what they would have testified had they been called in the Leach case. We do not engage in such speculation and we conclude McFarland has failed to meet his burden of proof on this issue. Furthermore, the postconviction court found McFarland's trial counsel attempted to contact one of the officers in question, but that the officer did not return her calls. The court also accepted counsel's testimony about her belief that the officers' testimony would not have aided in McFarland's defense. Such determinations by defense counsel involve reasonable trial strategy which we will not second-guess. See State v. Tryon , 431 11, N.W.2d 18 (Iowa Ct.App. 1988); see also Ledezma v. State , 626 N.W.2d 134, 143 (Iowa 2001) ("Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.").
3. Leach family member.
McFarland asserts that if called, Scott Leach, one of the Leach children living in the home when he entered it, would testify that Wendell Jr. told him he had unlatched the door prior to McFarland entering it. In McFarland's view, this would tend to prove he did not forcibly enter the Leach home. On our de novo review of the record, we conclude McFarland was not prejudiced by counsel's failure to call Scott Leach. The entry occurred in the early morning hours. Wendell Leach Jr. testified that McFarland banged on the door, which "flew open" and hit him, knocking him into the back of the closet. An argument ensued between McFarland and the Leaches about his presence in the home. Finally, a police technician testified that shortly following the incident she observed what appeared to be new damage to the Leachs' door indicating it had been forcibly opened. Accordingly, we conclude McFarland has not shown a reasonable probability Scott's testimony would have changed the outcome of the case.
III. STATE'S BREACH OF PLEA AGREEMENT.
The postconviction court rejected McFarland's contention appellate counsel rendered ineffective assistance in failing to argue the State breached the plea agreement. The State and McFarland entered into an agreement in which the State agreed, among other things, to not resist the imposition of concurrent sentences. At the sentencing hearing, McFarland's counsel informed the court of the agreement. Thereafter the State remained silent at the sentencing hearing on the question of whether the sentences should run concurrently or consecutively. McFarland contends the plea agreement required the prosecutor to specifically affirm during the sentencing hearing its assent to the imposition of concurrent sentences. When a plea rests on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration for the plea, such promise must be fulfilled. State v. Horness , 600 N.W.2d 294, 298 (Iowa 1999). Interpretation of a plea agreement involves the ascertaining of the meaning of words and is a legal question. Ridinger v. State, 341 N.W.2d 734, 736 (Iowa 1983). The fact a defendant subjectively disagrees with the plain meaning of the agreement, without more, does not establish its ambiguity. Id. Where the language is clear and unambiguous, the intention expressed in the agreement prevails over the intent or interpretation of a party. Id. We believe reasonable minds could not reach different inferences from the questioned term of the plea bargain reached between McFarland and the State. The State agreed not to resist the imposition of concurrent sentences, and that is precisely what it did. The agreement did not call for the State to affirmatively recommend such a sentence. See Horness , 600 N.W.2d at 299 (interpreting the State's promise to "recommend" specific sentences). Counsel's silence is the equivalent of "not resisting" the request, and thus the prosecutor did not breach the plea agreement. Counsel was thus not ineffective in failing to raise this issue.
IV. TRIAL COUNSEL'S COERCION.
McFarland contended below appellate counsel was ineffective in failing to assert trial counsel Valerie Wilson coerced him into accepting the plea agreement offered by the State, and therefore his guilty pleas were involuntary. McFarland presented evidence that Wilson threatened to withdraw from his representation if he did not accept the plea bargain. The postconviction court rejected this contention, specifically noting it found McFarland not to be credible with regard to this claim. We defer to those credibility findings. See Cox v. State , 554 N.W.2d 712, 715 (Iowa Ct.App. 1996). We conclude McFarland cannot show he was prejudiced by counsel's failure to raise this issue. See Berryhill , 603 N.W.2d at 245. Our de novo review of the record persuades us McFarland fully understood the terms of the plea agreement, and that his plea was given voluntarily and intelligently. The plea colloquy reflects the court informed McFarland of the elements of the charges, the possible sentencing options, the right to court-appointed counsel, the privilege against self-incrimination, the presumption of innocence, and the State's burden of proof. See Iowa R.Crim.P. 2.8(2)( b ). McFarland admitted he understood these rights, and that his plea was a voluntary and informed decision. Accordingly, we conclude that because McFarland cannot show his Alford pleas were involuntary, he cannot establish appellate counsel was ineffective in failing to raise this issue on direct appeal.
V. EXCLUSION FROM CONVERSATION IN CHAMBERS.
Conversations occurred between the trial judge, Valorie Wilson, and prosecutor Odell McGhee at which McFarland was not present. These conversations between counsel and the court were held for the purpose of discussing a potential plea agreement. In his postconviction relief application, McFarland claimed his right to be present at all stages of the trial was infringed, and thus he was denied his due process and Sixth Amendment rights. Iowa Rule of Criminal Procedure 2.27(1) requires the presence of a criminal defendant "at the initial appearance, arraignment, and plea" as well as "at every stage of trial including the impaneling of the jury and the return of the verdict." `[S]tage of the trial' as used in rule [ 2.27(1)] [requiring presence of defendant] includes the trial itself, from the selection of the jury through the verdict and, in addition, all pretrial and post-trial proceedings when fact issues are presented or when their dispositions, for some other reason, will be significantly aided by the defendant's presence. State v. Austin, 585 N.W.2d 241, 245 (Iowa 1998).
We find the conversations from which McFarland was excluded were merely informal discussions between the court and counsel and were intended to explore the potential for a plea agreement. In this sense, McFarland's cause could only have been aided by the conversations. Moreover, we conclude the conversations were not held during a proceeding or stage of the trial contemplated in rule 2.27(1). Appellate counsel thus did not render ineffective assistance in failing to raise this issue on direct appeal.
VI. CONCLUSION.
McFarland has filed a pro se appellate brief. We note this appears to be a reproduction of an ethics complaint to the Iowa Supreme Court Board of Professional Ethics and Conduct regarding his trial counsel, Valorie Wilson. It does not appear to contain any identifiable issues not addressed in his appellate counsel's brief in this appeal. We have considered all contentions made in McFarland's pro se brief, and whether expressly addressed or not in this opinion, we find them to be without merit. We affirm the denial of McFarland's postconviction relief application.