Donshey Purnell Reed v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0502
Filed June 5, 2019
DONSHEY PURNELL REED,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Donshey Reed appeals the district court’s denial of his application for
postconviction relief. PCR DECISION AFFIRMED; SENTENCES VACATED IN
PART AND REMANDED FOR RESENTENCING.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Presiding Judge.
Donshey Reed pled guilty to possession of marijuana with intent to
distribute (second or subsequent offense) (Count I), delivery of marijuana (second
or subsequent offense) (Count II), drug-tax-stamp violation (Count III), possession
of a firearm by a felon (Count IV), trafficking stolen weapons (Count V), and eluding
(Count VI). The district court sentenced Reed to serve prison terms not exceeding
fifteen years on Counts I and II, five years on Counts III, IV, and V, and one year
on Count VI; with the sentences to run concurrently. The court fined Reed $750
plus a 35% surcharge on Counts I through V and $315 plus a 35% surcharge on
Count VI. The court also imposed a drug-abuse-resistance-education (DARE)
surcharge on Counts I through IV and a law-enforcement-initiative (LEI) fee on
Counts I through III and Count V.
Reed filed a postconviction-relief (PCR) application challenging various
aspects of the pretrial and guilty-plea proceedings.1 Following a hearing, the PCR
court denied the application.
On appeal, Reed argues (1) his sentence should be modified to remove
illegally-imposed surcharges and (2) his PCR attorney was ineffective in “failing to
present evidence or develop a record at the [PCR] proceeding.”
The State agrees the DARE surcharge should not have been imposed on
Count III (drug-tax-stamp violation) and Count IV (possession of a firearm by a
felon) because those crimes arose under statutes not enumerated in the DARE
surcharge statute. See Iowa Code §§ 911.2(1) (2013) (authorizing imposition of
1
Reed’s first PCR application was dismissed.
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the DARE surcharge only for offenses “provided for in chapter 321J or chapter
124”), 453B.12 (drug-tax-stamp violation), 724.26(1) (possession of a firearm as a
felon). The State further agrees the LEI surcharge should not have been imposed
on Count V (trafficking stolen weapons), which arises under a statute not
enumerated in the LEI statute. See id. §§ 911.3(1), 724.16A (trafficking stolen
weapons). The sentence should be corrected to remove the identified surcharges.
See Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any
time.”).
We turn to Reed’s contention that his PCR attorney “did not present any
evidence or argument as to why trial counsel [did not] challenge[] the search
warrants, [seek] to sever the charges, or [move to] suppress[] evidence obtained
from an unlawful traffic stop as alleged in the Petition” and “did not sufficiently
develop the record with respect to whether there was a factual basis for the felon
in possession of a firearm conviction.” To prevail, Reed must show (1) counsel
breached an essential duty and (2) prejudice resulted. Strickland v. Washington,
466 U.S. 668, 687 (1984). “[T]his showing often requires a more thorough record
than the one provided on direct appeal.” State v. Petty, 925 N.W.2d 190, 196 (Iowa
2019).
At the PCR hearing, the State offered several exhibits culled from trial court
binders, including search warrants executed on two homes. The State also offered
the transcript of a deposition of Reed’s plea attorney. These exhibits were
admitted without objection.
The deposition transcript did not elucidate the issues. The plea attorney
candidly stated he could not remember the facts underlying the charges. He
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specifically could not speak to facts contained in the minutes of testimony that
might have raised doubts about Reed’s actual or constructive possession of a gun
and marijuana found in a room frequented by people other than Reed. When PCR
counsel asked him about the search warrants and why he failed to file a
suppression motion, he acknowledged having “many conversations[] [with Reed]
about filing a motion to suppress” but said he was dissuaded by the prosecutor’s
threats to seek “additional enhancements.”
We conclude the record is inadequate to determine whether Reed’s plea
attorney was ineffective in failing to file a motion to suppress evidence gained
through execution of the search warrants. It follows that the record is inadequate
to determine whether PCR counsel was ineffective in failing to present a more
thorough record on this ineffective-assistance-of-plea-counsel claim. We preserve
the claim for another possible postconviction-relief application. See Allison v.
State, 914 N.W.2d 866, 819 (Iowa 2018) (“In order to avoid the difficult
constitutional position that would result in denying a remedy where defense
counsel allegedly provided ineffective assistance at trial and postconviction
counsel is ineffective in raising that claim, we think the best approach is to hold
that where a PCR petition alleging ineffective assistance of trial counsel has been
timely filed per section 822.3 and there is a successive PCR petition alleging
postconviction counsel was ineffective in presenting the ineffective-assistance-of-
trial-counsel claim, the timing of the filing of the second PCR petition relates back
to the timing of the filing of the original PCR petition for purposes of Iowa Code
section 822.3 if the successive PCR petition is filed promptly after the conclusion
of the first PCR action.”); see also Goode v. State, 920 N.W.2d 520, 526 (Iowa
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2018) (“Based on Allison, the statutory-limitation period is not an impediment to
pursuing a second PCR application relating to the claim in this case if promptly
filed following the appeal.”).
The PCR record contains scant if any evidence on Reed’s claim that his trial
attorney should have filed a motion to sever the charges. We preserve the claim
for another possible postconviction-relief application.
We are left with the contention that the record lacked a factual basis for the
felon-in-possession-charge; Reed’s plea attorney was ineffective in failing to
challenge the absence of a factual basis; and PCR counsel was ineffective in
failing to develop the record on this claim. At a minimum, we need the plea
transcript to address the issue. This was not one of the trial documents admitted
into the PCR record. Accordingly, we preserve the issue for another possible
postconviction-relief application.
We vacate Reed’s sentence and remand for removal of the DARE
surcharge for Counts III and IV and removal of the LEI surcharge for Count V. We
affirm the PCR court’s denial of Reed’s postconviction-relief application and
preserve his claims that PCR counsel was ineffective for another possible
postconviction-relief application.
PCR DECISION AFFIRMED; SENTENCES VACATED IN PART AND
REMANDED FOR RESENTENCING.