Opinion
No. 2-894 / 02-0103.
Filed December 11, 2002.
Appeal from the Iowa District Court for Linn County, THOMAS M. HORAN, Judge.
Defendant appeals from the judgment and sentence entered against him following a jury verdict finding him to be an habitual offender under Iowa Code section 902.8 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Denver Dillard, County Attorney, and Brian Claney, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Steven Melvin Cooley appeals from the judgment and sentence entered against him following a jury verdict finding him to be an habitual offender under Iowa Code section 902.8 (1999). The sole issue presented to us on appeal is whether Cooley's standby counsel was ineffective in failing to timely challenge evidence of prior felony convictions because they were either obtained without counsel or without a valid waiver of his right to counsel or in failing to offer evidence that prior convictions were obtained without benefit of counsel or adequate waiver of counsel. We review his claim de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To succeed with a claim of ineffective assistance of counsel, Cooley must prove counsel failed to perform an essential duty, and he was prejudiced by counsel's error. See State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
Cooley's two claims of ineffective assistance of counsel contain no more information than the mere assertions of the claims. The first claim simply suggests that counsel should have objected to the evidence of his prior convictions on the grounds he was unrepresented or failed to knowingly waive counsel. However he neither affirmatively asserts he was unrepresented or failed to knowingly waive counsel, nor states what evidence exists to support this suggestion. The second claim is related to the first and suggests counsel should have produced evidence that the prior convictions were uncounseled or without a knowing waiver of counsel. Again, appellant is careful to avoid claiming any truth to these suggestions. In addition, neither of the claims suggest how different action by counsel would have affected the result below. Cooley's claims are therefore too general in nature to allow us to preserve them for a possible postconviction proceeding. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (holding that claims of ineffective assistance of counsel are too general to allow preservation for a postconviction proceeding where the claims do not suggest what the result of different action by counsel would have been or how such different action would have affected the result obtained below).
In fact, the record contains Cooley's acknowledgment that he did waive his right to counsel in one of the prior felonies relied on by the state to establish habitual offender status.
It is worth noting that Cooley insisted on representing himself except during the enhancement phase of the proceedings when he asked standby counsel to assist him.