Noel J. Bender v. State of Iowa ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1231
Filed September 23, 2020
NOEL J. BENDER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Julie Schumacher,
Judge.
Noel Bender appeals the summary disposition of his application for
postconviction relief. AFFIRMED.
Michael J. Jacobsma of Jacobsma Law Firm, P.C., for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Doyle, P.J., and Mullins and Greer, JJ. Schumacher, J.,
takes no part.
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MULLINS, Judge.
In 2015, Noel Bender was found guilty of third-offense domestic abuse
assault as a habitual offender, but we reversed his conviction and remanded for a
new trial on the basis that his attorney was ineffective in failing to object to the
inclusion of an erroneous intimate-relationship alternative contained in the
marshalling instruction for the crime. State v. Bender, No. 15-1595, 2016 WL
6396227, at *1–3 (Iowa Ct. App. Oct. 26, 2016). On remand, Bender waived his
right to a jury trial and was found guilty as charged. State v. Bender, No. 17-0646,
2018 WL 1633514, at *1 (Iowa Ct. App. Apr. 4, 2018). Bender stipulated to the
prior offenses supporting sentencing enhancement. On direct appeal following
retrial, we rejected Bender’s challenge to the sufficiency of the evidence supporting
the “household member” element of the charge and affirmed his conviction. Id. at
*1–2.
In October 2018, Bender filed the application for postconviction relief
precipitating this appeal, in which he appeared to assert the same claim he raised
in his first direct appeal. The State moved for summary disposition. The matter
proceeded to an unreported hearing in June 2019, after which the court granted
the State’s motion, recognizing the ineffective-assistance claim did not stem from
his retrial and he was therefore not entitled to relief. Bender subsequently filed
motions for summary disposition and reconsideration. He filed his notice of appeal
before the court ruled on either motion.
On appeal, Bender argues his counsel in his second direct appeal from his
conviction as well as his counsel in the postconviction-relief proceeding were
ineffective in failing to argue his trial counsel was ineffective in “failing to insist that
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the trial court engage in an adequate colloquy with [him] regarding his admission
to prior convictions in order to ensure that [his] admission was voluntary and
intelligently made.”1
Bender made the same claim in a prior appeal involving the summary
disposition of another of his applications for postconviction relief stemming from
the same criminal case. See Bender v. State, No. 19-1106, 2020 WL 4499768, at
*1 (Iowa Ct. App. Aug. 5, 2020). We affirmed because there was no indication in
the record the underlying criminal file was made part of the record before the
district court and the record was therefore insufficient to facilitate our review. See
id. at *1–2.
In the prior appeal from denial of postconviction relief, the underlying
criminal file was not transmitted to this court. In this appeal, the underlying criminal
file has been transmitted to us. While we again find no indication in the record that
the underlying file was judicially noticed by, or otherwise placed before, the district
court,2 given our disposition we will assume it was for purposes of judicial
1 In his argument heading, Bender also suggests postconviction counsel was
ineffective in failing to consolidate the postconviction action precipitating this
appeal with another pending postconviction action “so that the two matters could
be considered together.” Because he presents no substantive argument on this
point, we deem it waived. See Iowa R. App. P. 6.903(2)(g)(3).
2 While the State agrees the underlying criminal file is part of our record on appeal
due to recent legislation requiring “[t]he underlying trial court record containing the
conviction for which an applicant seeks postconviction relief” to “automatically
become part of the record in a claim for postconviction relief,” that statute did not
become effective until July 1, 2019. See 2019 Iowa Acts ch. 45, § 2 (codified at
Iowa Code § 822.6A (2020)); see also Iowa Const. art. 3, § 26 (stating effective
date of laws). The court granted summary disposition in June 2019, so it did not
automatically become part of the record in the district court or on appeal. See
State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019) (“[U]nless the legislature clearly
indicates otherwise, ‘statutes controlling appeals are those that were in effect at
the time the judgment or order appealed from was rendered.’” (quoting James v.
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economy. We proceed to the merits under a de novo review. See Ledezma v.
State, 626 N.W.2d 134, 141 (Iowa 2001).
For his claim that trial counsel was ineffective in failing to object to the
adequacy of the colloquy concerning prior convictions, Bender complains the court
failed to follow the colloquy requirements for admitting to prior convictions that was
laid out by our supreme court in State v. Harrington, 893 N.W.2d 36, 45–46 (Iowa
2017). The State counters that the guidelines laid out in Harrington only apply
prospectively and points out Bender’s colloquy occurred prior to the Harrington
decision. We have so held before. See State v. Thornburg, No. 16-2019, 2017
WL 4049526, at *4–5 (Iowa Ct. App. Sept. 13, 2017); State v. Wade, No. 16-0867,
2017 WL 2181450, at *4 (Iowa Ct. App. May 17, 2017).3
In any event, stipulating to prior convictions is akin to a guilty plea. See
Harrington, 893 N.W.2d at 41, 42, 45. To satisfy the prejudice prong of an
ineffective-assistance claim in relation to guilty-plea inadequacies and, by
extension, stipulating to prior convictions, the defendant must demonstrate, among
other things, “a reasonable probability that, but for counsel’s errors, he or she
would not have pleaded guilty [or stipulated] and would have insisted on going to
State, 479 N.W.2d 287, 290 (Iowa 1991))); see also Iowa R. App. P. 6.801 (“Only
the original documents and exhibits filed in the district court case from which the
appeal is taken, the transcript of proceedings, if any, and a certified copy of the
related docket and court calendar entries prepared by the clerk of the district court
constitute the record on appeal.”); In re M.M., 483 N.W.2d 812, 815 (Iowa 1992)
(“We limit our review to the record made [below].”).
3 But we have also recognized that Harrington does apply to non-final cases
pending in the district court or on direct appeal at the time Harrington was issued.
State v. Miller, No. 16-2110, 2018 WL 1099580, at *8 (Iowa Ct. App. Feb. 21,
2018); State v. Allie, No. 17-0190, 2018 WL 739297, at *5 (Iowa Ct. App. Feb. 7,
2018).
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trial.” State v. Petty, 925 N.W.2d 190, 196 (Iowa 2019) (quoting State v. Straw,
709 N.W.2d 128, 138 (Iowa 2006)). Even if he would have insisted on going to
trial on the prior convictions, Bender must show “a reasonable probability that . . .
the result of the proceeding would have been different.” State v. Booth-Harris, 942
N.W.2d 562, 577 (Iowa 2020) (quoting State v. Ary, 877 N.W.2d 686, 705 (Iowa
2016)). Bender makes no claim he would have insisted on going to trial or that the
result would have been different. The minutes of evidence detailed Bender’s
criminal history to include three misdemeanor domestic-abuse-assault convictions,
two felony drug convictions, and one felony theft conviction. The minutes stated
witness testimony would be provided as to the convictions. The record also shows
the State was in possession of certified judgment entries as to two of the domestic-
abuse-assault convictions and all three felony convictions. With this evidence in
the hands of the State, we find no reasonable probability that, but for counsel’s
alleged error, Bender would have insisted on proceeding to trial or that the result
of the proceeding would have been different. As a result, Bender was not
prejudiced, and trial counsel was not ineffective. Because trial counsel was not
ineffective, subsequent counsel were not ineffective in failing to raise the issue.
We affirm.
AFFIRMED.