Opinion
No. 5-322 / 04-0938
Filed April 28, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Bradley Behmer asserts his counsel was ineffective. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Stephan Baynes and Daniel Voogt, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Following a warrantless search of an apartment, the State charged Bradley Behmer with possession of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7)(2003), and with failure to affix a drug tax stamp, in violation of sections 453B.3 and 453B.12. The State also sought a second offense enhancement under section 124.411.
Behmer filed a motion to suppress evidence garnered in the search, but did so after the deadline for filing pretrial motions. The district court declined to find good cause for the late filing and ordered the motion stricken.
Behmer subsequently agreed to proceed with a stipulated trial on the minutes of testimony. He also agreed to consideration of a laboratory report listing the quantities of drugs found in his possession. Finally, Behmer conceded these items were sufficient to support a finding of guilt on the possession count. In return for these concessions, the State agreed to dismiss the "drug tax stamp" count and agreed not to seek the second offender enhancement on the possession count.
At the stipulated trial, the presiding judge indicated he had reviewed the minutes of testimony and the laboratory report. He then made the following statement on the record:
Based on the information stipulated to for consideration today, that evidence is more than sufficient to find that the defendant is guilty of the charge in question beyond a reasonable doubt, that evidence meeting that standard as to all applicable elements of the charge that has been stated in the trial information and on the record here this morning.
The court found Behmer guilty and imposed sentence on the possession count.
On appeal, Behmer argues trial counsel was ineffective in (1) failing to file a timely motion to suppress and (2) failing to file a motion for new trial based on the absence of special findings of fact and more detailed conclusions of law.
The State agrees with Behmer that the record for our review of the suppression issue is inadequate, requiring preservation of that issue for postconviction relief. We concur in this assessment. See State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
We find the record adequate to address the second ineffective-assistance-of-counsel claim and, on our de novo review, can discern neither a breach of an essential duty nor resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984).
Iowa Rule of Criminal Procedure 2.17(2), on which Behmer relies, states:
Findings. In a case tried without a jury the court shall find the facts specially and on the record separately stating its conclusions of law and rendering an appropriate verdict.
Behmer stipulated to the minutes of testimony and, through his attorney, conceded sufficient evidence existed to support a finding of guilt. Under these circumstances, the district court did not violate Rule 2.17(2) in simply stating that there existed evidence to support "all applicable elements" and in summarily concluding that the evidence was "more than sufficient" to find the defendant guilty. Accordingly, defense counsel did not breach an essential duty in failing to file a motion for new trial to challenge this finding and conclusion. Cf. United States v. Bohn, 508 F.2d 1145, 1148 (8th Cir. 1975) (stating, in response to challenge based on comparable Federal Rule of Criminal Procedure 23(c), "While the special findings made at their request are sketchy, they are sufficiently complete to satisfy the minimum requirements of the rule. We can discern therefrom the legal and factual basis of the trial court's verdict.") (emphasis added).
As for the prejudice prong, Behmer had to show that, absent the breach, the outcome "would reasonably likely have been different." Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. As Behmer stipulated to the record and conceded a finding of guilt could permissibly be made, there is no reasonable likelihood that the result would have been different had he asked for and obtained more detailed findings and conclusions.
We affirm Behmer's judgment and sentence and preserve the suppression issue for postconviction relief.