Jesse Neitzel v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0427
Filed June 19, 2019
JESSE NEITZEL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee,
Judge.
Jesse Neitzel appeals the summary disposition of his postconviction-relief
application. AFFIRMED.
Edward Fishman of Hopkins & Huebner, P.C., Adel, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
2
MAY, Judge.
Jesse Neitzel appeals the dismissal of his postconviction-relief (PCR)
action. Neitzel does not claim error by the PCR court. Instead, Neitzel claims his
counsel was ineffective in allowing this action to be dismissed. We affirm but
preserve Neitzel’s ineffective-assistance claims.
I. Background.
A jury found Neitzel guilty of sexual abuse in the second degree, a class “B”
forcible felony. Neitzel was sixteen years old when the alleged conduct occurred.
In June 2010, the district court sentenced Neitzel to a term of incarceration
not to exceed twenty-five years with a mandatory minimum of 17.5 years. Neitzel
appealed, and this court affirmed. See State v. Neitzel, 801 N.W.2d 612, 626 (Iowa
Ct. App. 2011).
In 2014, our supreme court decided State v. Lyle, 854 N.W.2d 378 (Iowa
2014). The Lyle court held mandatory minimums are unconstitutional “in cases
involving conduct committed by youthful offenders.” 854 N.W.2d at 402. Lyle also
prescribed several factors for sentencing courts to consider when deciding whether
to impose a minimum sentence. Id. at 404 n.10.
Neitzel filed an application for resentencing. Consistent with Lyle, the
district court held a resentencing hearing. Ultimately, though, the district court
again concluded “it is appropriate to require [Neitzel] to serve the minimum
sentence of 17.5 years before becoming eligible for parole.”
In June 2017, our supreme court decided State v. Roby, 897 N.W.2d 127(Iowa 2017). Roby “further developed” the sentencing factors announced in Lyle.
State v. Harrison, 914 N.W.2d 178, 190 (Iowa 2018).
3
In July 2017, Neitzel commenced this PCR action. Among other things,
Neitzel requests another resentencing hearing, this time based on Roby.
The State moved for summary disposition based on Iowa Code section
822.3 (2017), the three-year statute of limitations for PCR actions. In a written
response, Neitzel’s PCR counsel admitted that Neitzel’s PCR claims “would now
be time-barred.” Counsel also pointed out, however, that “the correct vehicle” for
Neitzel to challenge his sentence is not a PCR action, but rather “a motion for
correction of illegal sentence, pursuant to Iowa R. Crim. P. 2.24(5)(a).” In a
reported hearing, Neitzel and his counsel seemed to agree that (1) they would not
resist the State’s motion for dismissal of this PCR action; but (2) separately, Neitzel
would pursue a motion for resentencing. The PCR court granted the State’s
motion and dismissed. This appeal followed.
II. Discussion.
On appeal, Neitzel does not argue the PCR court erred in dismissing his
PCR action. Instead, Neitzel claims counsel was ineffective in failing to resist the
State’s motion for summary disposition.
We can review Nietzel’s ineffective-assistance-of-counsel claims “if the
record is sufficient to reach” them. State v. Harris, 919 N.W.2d 753, 754 (Iowa
2018). “If the record is insufficient to allow” review at this stage, we will allow
Neitzel “to raise the claim in a separate postconviction-relief action.” Id. Likewise,
“[i]f the development of the ineffective-assistance claim in the appellate brief was
insufficient to allow its consideration, the court of appeals should not consider the
claim, but it should not outright reject it.” Id.4
Applying these principles here, we find the record is not sufficiently
developed for our review of Neitzel’s ineffective-assistance claims. Therefore, we
do not consider those allegations now. See id.It is true, as the State concedes, that “[p]erhaps [PCR] counsel could have
requested the district court treat [Neitzel’s] application for postconviction relief as
a motion to correct an illegal sentence.” Cf. Veal v. State, 779 N.W.2d 63, 65 (Iowa
2010). On the present record, however, we cannot conclude that counsel’s failure
to make that request was “outside the range of normal competency” and, therefore,
constituted a “breach of an essential duty.” Morgan v. State, 469 N.W.2d 419, 426
(Iowa 1991); see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Counsel may,
indeed, have had good reason for each step he [or she] took or failed to take.”).
Nor is the record adequate to determine whether Neitzel was prejudiced by
counsel’s strategy. See Morgan, at 427–28. Although his PCR case was
dismissed, Neitzel remains free to pursue resentencing “consistent with [Iowa’s]
current juvenile sentencing jurisprudence,” including Roby. State v. Zarate, 908
N.W.2d 831, 856 (Iowa 2018). Moreover, under Jefferson v. Iowa District Court,
Neitzel will have the right to request the appointment of counsel for his
resentencing. 926 N.W.2d 519, 524–25 (Iowa 2019).
III. Conclusion.
For the reasons explained, we affirm but preserve Neitzel’s ineffective-
assistance claims for the possibility of “a separate postconviction-relief action” in
the future. See Harris, 919 N.W.2d at 754.
AFFIRMED.