Opinion
No. 4-440 / 03-1225.
July 14, 2004.
Appeal from the Iowa District Court for Fayette County, Margaret Lingreen, Judge.
Defendant appeals from the district court order denying his application for postconviction relief. AFFIRMED.
David Roth of Gallagher, Langlas Gallagher, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Jeffrey Sawvel appeals from an order denying his application for postconviction relief. He contends the district court erred in determining counsel was effective. We review his claim de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
Sawvel was convicted of first-degree murder in the shooting death of Gehlan Quandt. Quandt's death occurred during an altercation over whether Quandt would help Sawvel and his companions, who had driven their vehicle into a ditch. Sawvel shot Quandt three times, then kicked him in the head several times, and cut his throat.
Sawvel contends his counsel was ineffective in failing to obtain expert testimony regarding the defense of diminished capacity. Specifically, Sawvel contends his trial counsel should have obtained expert witness testimony regarding the effects of drug withdrawal. An expert witness at Sawvel's postconviction hearing testified such withdrawal may cause aggressive moods.
Our ultimate concern in claims of ineffective assistance is with the "fundamental fairness of the proceeding whose result is being challenged." State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). Sawvel has the burden to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. With regard to the first prong, Sawvel must prove trial counsel's performance was not within the normal range of competence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). In evaluating counsel's performance, we presume counsel acted competently. Id. The test for prejudice is whether a reasonable probability existed that the outcome of the trial would have been different but for counsel's alleged omissions. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
We conclude counsel was not ineffective in failing to obtain testimony regarding diminished capacity resulting from the effects of drug withdrawal. There was no evidence drugs were a factor in Sawvel's commission of the crime. Although Sawvel told counsel about past methamphetamine use, this is not a basis by which reasonable counsel would believe drug usage or withdrawal contributed to Sawvel's actions. Sawvel did not tell his counsel or investigators that he was using any drugs in the two weeks leading up to the incident. A urine specimen taken within hours of the murder tested negative for drugs and alcohol. Counsel did have Sawvel evaluated before trial on issues of competency, sanity, and diminished responsibility stemming from counsel's belief Sawvel suffered from an organic mental deficiency. The mental evaluation indicated insanity and diminished responsibility were not viable defenses. Counsel instead pursued a "lesser-included offense" defense. This tactical decision is not grounds for finding ineffective assistance of counsel. Ledezma, 626 N.W.2d at 143 (holding that trial strategy or miscalculated tactics do not constitute ineffective assistance).
AFFIRMED.