Leslie Jerome Bell, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1128
Filed October 15, 2014
LESLIE JEROME BELL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
Leslie Bell appeals from the district court’s denial of his second application
for postconviction relief. AFFIRMED.
Susan R. Stockdale, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant
County Attorney, for appellee State.
Considered by Doyle, P.J., McDonald, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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DOYLE, P.J.
In 2004, a jury found Leslie Bell guilty of attempted murder, first-degree
burglary, willful injury causing serious injury, assault with intent to inflict serious
injury, and going armed with intent. The State alleged that on June 15, 2003,
Bell broke into the home of his former girlfriend, Lucinda DeBrown, hid in the
basement, and then attacked DeBrown and her friend, Charles James, with a
box cutter when they came home. Bell was sentenced to a term of
imprisonment. This court affirmed his convictions on direct appeal. State v. Bell,
No. 04-0414, 2005 WL 427536, at *4 (Iowa Ct. App. Feb. 24, 2005) (“Bell I”).
In 2008, Bell filed his first application for postconviction relief. This court
affirmed the district court’s denial of Bell’s application. Bell v. State, No. 09-1421,
2011 WL 441972, at *2 (Iowa Ct. App. Feb. 9, 2011) (“Bell II”). In 2012, Bell filed
his second application for postconviction relief. After addressing each of the
issues raised by Bell, the district court denied Bell’s application. He now
appeals.
We first address the State’s waiver of the statute of limitations and res
judicata defenses. We note, as the district court did, it appears Bell’s application
is barred by the three-year statute of limitations. See Iowa Code § 822.3 (2012)
(providing postconviction-relief “applications must be filed within three years from
the date the conviction or decision is final . . . .”). Here, the uncontroverted facts
in Bell’s application show the limitations period had passed. An exception exists
for grounds of fact or law that could not have been raised within the required
period. Id. No such ground of fact or law was claimed by Bell. But, the State
failed to timely assert the statute of limitations defense and therefore waived it.
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Discussing the limitations defense in a postconviction-relief proceeding,
our supreme court has restated the general rule that the “defense must be
affirmatively asserted by a responsive pleading.” Davis v. State, 443 N.W.2d
707, 708 (Iowa 1989) (citing Pride v. Peterson, 173 N.W.2d 549, 554 (Iowa
1970)). The limitations defense “is primarily an affirmative defense to be
specially asserted in a separate division of the responsive pleading to the claim
for relief.” Pride, 173 N.W.2d at 554. In situations where the defense is
obviously applicable, the responding party is allowed to raise the defense by
filing a motion to dismiss. See Davis, 443 N.W.2d at 708; Pride, 173 N.W.2d at
554.
The State did not raise the limitations defense in its answer or in a motion
to dismiss. Even after the issue was raised sua sponte by the district court at the
commencement of the postconviction bench trial, the State did not take the bait.
The State did not address the issue at any point during the trial. It was not until
almost a month after the trial, when it filed its proposed findings of fact,
conclusions of law, and argument that the State first claimed Bell’s claims were
time-barred. That was too late; the State had already waived the affirmative
defense by failing to assert the defense in either its answer or in a motion to
dismiss. In its order denying Bell’s application, the district court aptly noted it
could not, “sua sponte, find that the statute of limitations bars Bell’s claim when
the State waived the defense prior to trial.” We agree.
At the commencement of the trial, the district court noted Bell’s application
also appeared to be barred by Iowa Code section 822.8 because of Bell’s prior
postconviction-relief proceedings. Section 822.8 provides:
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All grounds for relief available to an applicant under this
chapter must be raised in the applicant’s original, supplemental or
amended application. Any ground finally adjudicated or not raised,
or knowingly, voluntarily, and intelligently waived in the proceeding
that resulted in the conviction or sentence, or in any other
proceeding the applicant has taken to secure relief, may not be the
basis for a subsequent application, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the original, supplemental, or amended
application.
In its order denying Bell’s application, the district court concluded:
Bell previously asserted several of the claims at issue in this case
during a postconviction-relief proceeding that proceeded to trial in
2009. Again, on its face, Bell’s application appears to be barred by
Iowa Code section 822.8. However, the State failed to raise the
affirmative defense in its answers or in a pre-trial motion. This
court finds that because the State waived these affirmative
defenses prior to trial, these principles cannot now be used to bar
Bell’s application.
(Internal citations omitted.) We agree. Moreover, we share the trial court’s
frustration and reiterate its sentiments:
Not only does [the failure to assert necessary affirmative defenses]
prevent the court from disposing of cases on purely legal grounds,
it creates significantly more work for the court, [requiring it to
address] issues that could have been otherwise easily disposed of
based upon res judicata because the same grounds for relief were
[previously] raised by the applicant . . . [and previously] addressed
by the court on an earlier occasion.
The same could be said about the failure to raise the statute-of-limitations
defense. So, the statute-of-limitations and res judicata defenses having been
waived, we therefore turn to the merits of Bell’s claims.
On appeal, he asserts his trial counsel was ineffective in (1) not allowing
him to testify and (2) failing to request a jury instruction on mistake of fact. We
review claims of ineffective assistance of counsel de novo. Ennenga v. State,
812 N.W.2d 696, 701 (Iowa 2012). To prevail on his ineffective-assistance-of-
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counsel claims, Bell must show (1) his trial counsel failed to perform an essential
duty and (2) prejudice resulted. See id. A reviewing court need not examine
both prongs if one is lacking. See Lamasters v. State, 821 N.W.2d 856, 867
(Iowa 2012).
The first prong requires proof that counsel did not act as a “reasonably
competent practitioner” would have acted. See State v. Simmons, 714 N.W.2d
264, 276 (Iowa 2006). We presume the “attorney performed competently and
avoid second-guessing and hindsight.” State v. Brubaker, 805 N.W.2d 164, 171
(Iowa 2011). “Miscalculated trial strategies and mere mistakes in judgment
normally do not rise to the level of ineffective assistance of counsel.” Id. at 174.
Additionally, “[c]ounsel has no duty to raise an issue that has no merit.” State v.
Fountain, 786 N.W.2d 260, 263 (Iowa 2010).
To show prejudice under the second prong, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Ennenga, 812 N.W.2d at 701. A
reasonable probability is one “sufficient to undermine confidence in the outcome.”
Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).
Bell’s first claim, that his trial counsel was ineffective in not allowing him to
testify, was previously addressed by this court in Bell’s prior postconviction-relief
proceedings. There, we agreed with the district court’s findings that Bell’s
defense counsel “‘exercised reasonable judgment and strategy in analyzing
whether he should let Bell testify’” and that “Bell failed to meet his burden to
show the result of the trial would have been different if his attorney had advised
him differently.” Bell II, 2011 WL 441972, at *1. We determined Bell failed to
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show he received ineffective assistance of counsel. Id. at *2. In this second
postconviction-relief proceeding, we are presented with nothing to change our
original determination. Furthermore, the district court in this second proceeding
concluded:
A complete record was made outside the presence of the jury with
Bell by both his trial attorney and the trial judge . . . on whether Bell
desired to testify or not. . . . After an extensive discussion, Bell
stated: “I do not want to testify.” There is no showing that counsel
was ineffective in expressing his opinion that [Bell] should not
testify. Further, in his deposition, [Bell’s attorney] adequately sets
forth his reasons for recommending to Bell that he not testify. The
pros and cons of Bell testifying are adequately laid out in the trial
transcript and show that Bell made a knowing waiver of his right to
testify at trial. Bell is not entitled to postconviction relief on this
issue.
We agree.
Bell’s second claim is that his trial counsel was ineffective in failing to
request a mistake-of-fact instruction. See Iowa Crim. Jury Instructions 200.39
(stating a mistake of fact “must be because of a good faith reasonable belief by
the defendant, acting as a reasonably careful person under similar
circumstances”). Bell alleged he believed he was an occupant of DeBrown’s
residence on the date in question and, had the jury been properly instructed, the
jury would not have found Bell guilty of burglary.
After carefully analyzing this claim and applicable law, the district court
reasonably concluded:
The court finds that without Bell’s own testimony that he
believed he had some right or authority to enter or be in DeBrown’s
residence on June 15, 2003, there was no basis for the court to
have given a mistake-of-fact instruction. Thus, [Bell’s attorney] was
not ineffective for failing to request it. The court only has a duty to
instruct on a legal issue which is generated by the evidence in the
case. The evidence Bell presented was permissible under Iowa
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Code section 701.6. However, it did not rise to the level
necessitating the mistake-of-fact instruction.
As stated in [State v.] Freeman, [267 N.W.2d 69, 70 (Iowa
1978)], “the act to be justified must be taken under a bona fide
mistaken belief.” To establish such a mistaken belief, under these
facts, Bell himself was required to establish his belief by either
directly testifying to it or presenting other admissible evidence that
established his state of mind that he had some right or authority
which entitled him to be inside DeBrown’s home. From the record,
Bell’s evidence presented at trial did not establish the bona fide
mistaken belief. Since the evidence did not justify the giving of the
mistake-of-fact jury instruction, his trial attorney was not ineffective
for failing to request it.
Again, we agree.
On appeal, Bell also asserts three pro se claims: (1) the trial court erred in
not dismissing the trial information when the State failed to include the essential
element of malice aforethought under the attempt to commit murder count; (2) his
sentence is illegal because the charge for willful injury causing serious injury
should have merged with the attempted murder charge; and (3) the evidence
does not support his conviction for burglary in the first degree. We address each
claim in turn.
Bell claims the trial court had a duty to sua sponte dismiss the trial
information when the charge of attempt to commit murder lacked the essential
element of malice aforethought. Neither the trial information nor the jury
instructions listed malice aforethought as an element of the offense. This court
has specifically found that malice aforethought is not an element of the crime of
attempt to commit murder. See State v. Kehoe, 804 N.W.2d 302, 313 (Iowa Ct.
App. 2011). Since malice aforethought is not an element of the crime, the trial
court did not err in not dismissing the trial information. Thus, Bell’s claim fails on
this issue.
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Bell claims his convictions for both willful injury and attempt to commit
murder results in an illegal sentence. Willful injury causing serious injury is not a
lesser-included offense of attempt to commit murder. See State v. Clarke, 475
N.W.2d 193, 196 (Iowa 1991). Since one is not a lesser-included offense of the
other, the charges do not merge—and the sentences do not merge. Therefore,
Bell did not receive an illegal sentence and his claim fails on this issue.
Bell claims the jury’s burglary-in-the-first-degree verdict is not supported
by sufficient evidence. This court previously addressed Bell’s insufficiency-of-
the-evidence claims on direct appeal. There, we determined “there is sufficient
evidence to support Bell’s convictions.” Bell I, 2005 WL 427536, at *2. In making
that determination, we noted:
[T]he broken window in the basement supports the finding that Bell
broke into the house. Bell’s threats to DeBrown support a finding
that he broke in with an intent to cause her harm. Bell’s threats and
the fact that he had a box cutter show he specifically intended to
cause her death or serious injury. Also, when Bell fought with
James, he intended to injure James. Furthermore, there is
substantial evidence to show Bell was armed with a box cutter with
the intent to use it against another person.
Id. It having been previously determined sufficient evidence supported the jury’s
verdict, Bell’s claim fails on this issue.
For all the above reasons, we affirm the district court’s ruling denying
Bell’s application for postconviction relief.
AFFIRMED.