Evan Casey Moran, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1829
Filed April 27, 2016
EVAN CASEY MORAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., Potterfield, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VOGEL, Presiding Judge.
Evan Moran pled guilty to delivery of marijuana within 1000 feet of a
protected area in 2010. The trial information established Moran met with Dustin
Hampton, a close friend who was working as a confidential informant, and sold
Hampton marijuana for $1200.00. It only cost Moran $700 to obtain the
marijuana, and Moran asserts he only agreed to sell the drugs because of the
enormous profit. Following the guilty plea, Moran was granted a deferred
judgment and probation. After two probation violations and the revocation of his
deferred judgment, he filed a postconviction relief (PCR) application. He claims
his trial counsel was ineffective in failing to assert the defense of entrapment
based on his close relationship with Hampton and based on the enormous profit
he could make. He claims his plea was uninformed because he was not made
aware of the potential defense. He asserts he suffered prejudice because the
defense would likely have been successful at trial.
The PCR court denied this claim, finding there was no viable entrapment
defense in this case because “there was no excessive incitement, urging,
persuasion, or temptation.” The court noted, in the audio recording of the
transaction, Moran admitted to selling marijuana in the past for forty dollars per
bag, indicating Moran was not a law-abiding citizen who was enticed to do
something he would not ordinarily do. The court also noted Moran saw a quick
way to gain a cash advantage; his will was not overpowered by a friend.
Because Moran failed to meet his burden to prove his attorney failed to perform
an essential duty, the court denied Moran’s ineffective-assistance claim.
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“Entrapment may occur ‘when a law enforcement agent induces the
commission of the offense, using persuasion or other means likely to cause law-
abiding persons to commit it.’” State v. Babers, 514 N.W.2d 79, 83 (Iowa 1994)
(citation omitted). Law enforcement is prohibited from making “extreme pleas of
desperate illness, appeals based primarily on sympathy, pity, or close personal
friendship, and offers of inordinate sums of money.” Id. But “merely providing
the opportunity or the facilities for the commission of a crime does not constitute
entrapment.” Id. “[E]ntrapment must involve the use of excessive incitement,
urging, persuasion, or temptation by law enforcement agents.” Id. An objective
test is used for the defense of entrapment, and the defendant bears the burden
to generate a fact issue on the question of entrapment. Id.To prove ineffective assistance of counsel, Moran must establish counsel
failed to perform an essential duty and this failure resulted in prejudice. See
State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015). Our review of this claim is de
novo. Id. at 168. Upon our review of the record, we agree with the district court
that Moran failed to prove his attorney was ineffective in not pursuing the defense
of entrapment. The facts of the case, as contained in Moran’s PCR testimony,
do not rise to the level of generating a fact question on the defense of
entrapment.
It is Moran’s assertion that the defense of entrapment is applicable to him
because the “excessive profit” potential and the personal relationship he had with
Hampton induced him to sell the marijuana. However, Moran admitted during his
testimony at the PCR hearing that he set the price for the sale, thus setting his
own profit margin. Thus, it was not Hampton’s offer of an excessive profit margin
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that incited or persuaded Moran to arrange the sale. Moran admitted that
nothing Hampton did induced him to make the sale; Moran simply knew he could
make $500 with little effort. Moran stated he took advantage of the fact that
Hampton was not from the area and thus would not know the street value of the
drugs. Moran also admitted neither Hampton nor his defense counsel knew how
much money he made for facilitating the sale.
Because Moran did not prove that counsel breached an essential duty
when counsel failed to pursue the defense of entrapment, Moran’s ineffective-
assistance claim fails. See id. at 169 (noting a defendant’s failure to prove either
prong of an ineffective-assistance claim will preclude relief). We affirm the
district court’s denial of Moran’s PCR application.
AFFIRMED.