Jonathan Rodriguez Leyva v. State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0663
Filed November 17, 2022
JONATHAN RODRIGUEZ LEYVA,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.
The applicant appeals the denial of his application for postconviction relief.
AFFIRMED.
Thomas A. Hurd of the Law Office of Thomas Hurd, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
Jonathan Rodriguez Leyva1 appeals the denial of his PCR application
relating to his 2016 convictions for homicide by vehicle,2 leaving the scene of an
accident resulting in death, two counts of leaving the scene of a personal injury
accident, and operating a motor vehicle while barred. Rodriguez Leyva generally
re-raises issues he brought in his PCR application to the district court, claiming
trial counsel provided ineffective assistance by failing to (1) challenge the search
warrant under Iowa Code section 321J.10 (2015); (2) better prepare him for
allocution at sentencing; and (3) obtain an expert in retrograde extrapolation.
I. Background Facts and Proceedings.
Shortly after 10:00 a.m. on August 16, 2015, a vehicle driving
west on Grand Avenue near 51st Street in Des Moines struck a group
of bicyclers riding in the same direction, causing several injuries to
the riders and fatally injuring one rider. The driver of the vehicle did
not stop to assist the injured riders and continued driving west on
Grand Avenue. Other nearby bicyclists observed the collision and
identified the vehicle as a white Chevrolet Equinox SUV. One
witness took note of the license plate number on the vehicle, which
he reported to law enforcement officials.
Based on the license plate information, law enforcement
officers determined the vehicle belonged to [Rodriguez Leyva’s]
girlfriend, Adriana Cortes, and went to the couples’ home to question
Cortes and [Rodriguez Leyva]. After speaking with Cortes, the
officers determined [Rodriguez Leyva] was the last person to drive
the vehicle. The officers detained [him] and transported him to the
police station for further questioning. While there, [Rodriguez Leyva]
failed the administered standard field sobriety tests. [Rodriguez
Leyva] refused a preliminary breath test. An officer then placed [him]
1 In the underlying criminal matter and on direct appeal, the caption referred to the
defendant as Jonathan Leyva Rodriguez; in the postconviction-relief (PCR) action,
he is named Jonathan Rodriguez Leyva. We use the name we were provided in
this PCR action.
2 The jury also found Rodriguez Leyva guilty of operating a motor vehicle while
under the influence of alcohol or drug, second offense, which the district court
concluded merged with homicide by vehicle.
3
under arrest. . . .[3] The officers then transported [Rodriguez Leyva]
to a local hospital and obtained a search warrant for a body
specimen, which showed a BAC of .192.
State v. Rodriguez, No. 16-1159, 2017 WL 3524774, at *1 (Iowa Ct. App. Aug. 16,
2017).
Rodriguez Leyva was charged with and found guilty of six charges,
including homicide by vehicle. Finding one of the charges merged with another,
the court ordered Rodriguez Leyva to serve the sentences on the remaining five
counts consecutively for a total of thirty-four years imprisonment, with a 70%
mandatory minimum on the twenty-five-year sentence for homicide by vehicle.
Rodriguez Leyva challenged his convictions and sentences with a direct
appeal. In that appeal, he claimed there was insufficient evidence to support his
convictions and that his trial counsel provided ineffective assistance by failing to
object to the questioning of an officer at trial regarding the ultimate issue of the
case and portions of victim impact statements requesting that maximum sentences
be imposed. A panel of this court affirmed. See id. at *3. Procedendo issued on
December 12, 2017.
Rodriguez Leyva timely filed his PCR application in January 2019. In a later
application, amended with the assistance of counsel, Rodriguez Leyva claimed
trial counsel provided ineffective assistance by failing to challenge the search
warrant under section 321J.10: “Specifically, there should have been a challenge
to the reasonable grounds to believe that Applicant was ‘one or more of the
persons whose driving may have been the proximate cause of the accident was
3As both parties point out, our 2017 ruling contained a misstatement of fact, which
we have removed from this opinion.
4
violating section 321J.2 at the time of the accident.’ See Iowa Code section
321J.10(1)(b).” He also raised the issues of whether counsel had a duty to better
prepare him for allocution at sentencing, when he read a prepared statement, and
to obtain an expert in retrograde extrapolation.4
The parties agreed to submit the matter to the district court based on a
number of exhibits, which included deposition testimony from Rodriguez Leyva’s
trial attorney and appellate attorney. After each party filed a proposed ruling, the
district court denied Rodriguez Leyva’s application.
He appeals.
II. Standard of Review.
“We generally review a district court’s denial of an application for [PCR] for
errors at law.” Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021) (citation
omitted). “However, a PCR application alleging ineffective assistance of counsel
raises a constitutional claim, and we review [PCR] proceedings that raise
constitutional infirmities de novo.” Id. (altered for readability) (citations omitted).
III. Discussion.
Rodriguez Leyva argues trial counsel provided ineffective assistance in a
number of ways.
To prevail on a claim of ineffective assistance of counsel, the
applicant must demonstrate both ineffective assistance and
prejudice. Both elements must be prove[d] by a preponderance of
the evidence. However, both elements do not always need to be
addressed. If the claim lacks prejudice, it can be decided on that
ground alone without deciding whether the attorney performed
deficiently.
Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (internal citations omitted).
4 Rodriguez Leyva also raised a fourth issue, which he has not re-raised on appeal.
5
A. Suppression.
Officer Michael Dixon called the court and verbally requested a warrant to
retrieve a blood specimen from Rodriguez Leyva on August 16, 2015; the court
granted the warrant. Testing done on the blood specimen showed a blood alcohol
content (BAC) of .192. Rodriguez Leyva’s trial counsel moved to suppress the
evidence under Iowa Code section 808.3,5 arguing “[n]owhere in the application
by phone did the issuing judge request or record any address of the sworn person.”
After a hearing, the district court denied the motion, concluding
the record indicates the search warrant was based on sworn oral
testimony communicated by telephone and granted pursuant to the
specialized warrant requirement of Iowa Code section 321J.10 rather
than the general warrant requirement of section 808.3. Section
321J.10 provides a basis for the issuance of a search warrant distinct
from section 808.3. If issued under section 321J.10(3), a search
warrant must meet delineated standards distinct from those required
under section 808.3. As section 321J.10 does not require that the
magistrate endorse the name and address of the individuals
providing the relied-upon testimony, the search warrant in this case
was not invalid for the reasons cited in [Rodriguez Leyva’s] motion
to suppress.
In his PCR application, Rodriguez Leyva asserted trial counsel provided
ineffective assistance by bringing the motion to suppress under section 808.3
5 Section 808.3 states:
1. A person may make application for the issuance of a search
warrant by submitting before a magistrate a written application,
supported by the person’s oath or affirmation, which includes facts,
information, and circumstances tending to establish sufficient
grounds for granting the application, and probable cause for
believing that the grounds exist. . . .
2. If the magistrate issues the search warrant, the magistrate
shall endorse on the application the name and address of all persons
upon whose sworn testimony the magistrate relied to issue the
warrant together with the abstract of each witness’ testimony, or the
witness’ affidavit. . . .
6
when the search warrant was issued under section 321J.10. Section 321J.10(1)
provides:
1. Refusal to consent to a test under section 321J.6 does not
prohibit the withdrawal of a specimen for chemical testing pursuant
to a search warrant issued in the investigation of a suspected
violation of section 707.5 or 707.6A if all of the following grounds
exist:
a. A traffic accident has resulted in a death or personal injury
reasonably likely to cause death.
b. There are reasonable grounds to believe that one or more
of the persons whose driving may have been the proximate cause of
the accident was violating section 321J.2 at the time of the accident.
In both his PCR application and proposed ruling, Rodriguez Leyva focused on
section 321J.10(1)(b), suggesting the issuing court did not have reasonable
grounds to believe he was driving the SUV who struck the bicyclists. The district
court found this claim was meritless.
On appeal, Rodriguez Leyva changes tack, arguing trial counsel was
ineffective for failing to challenge the warrant under section 321J.10(1)(a). He
maintains,
Trial [c]ounsel failed to challenge that the oral warrant
application lacked sufficient indicia of reliability under Iowa Code
321J.10(1)(a) because the warrant application failed to contain any
personal observations of either Officer Dixon, Lieutenant Siebert, or
any unnamed witness upon whom Lieutenant Siebert relied as to the
reasonable likelihood the injury would cause death. Additionally, the
warrant application failed to relay any basis the same person was
qualified to opine regarding the reasonable likelihood the injuries
involved would cause death, either through personal observation of
the injuries directly, through professional training, or experience.
Because this is a different claim than he raised to the PCR court, Rodriguez Leyva
never got a ruling on this issue. It is not preserved for our review. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
7
district court before we will decide them on appeal.” (citation omitted)). And he
does not claim PCR counsel provided ineffective assistance for how he presented
the issue to the district court. See Harryman v. State, No. 14-1334, 2015 WL
4935640, at *5 (Iowa Ct. App. Aug. 19, 2015) (recognizing an applicant may raise
an ineffective-assistance-of-PCR-counsel claim on appeal from the denial of a
PCR application to bypass error preservation). So we do not reach the merits of
this issue.
B. Allocution.
At sentencing, Rodriguez Leyva read a statement he prepared beforehand.
He said:
Your Honor, I’m very sorry for my actions that caused
somebody to pass away. Accidents happen every day, and
sometimes we don’t know what happened. I have been a victim of
addiction, and have been struggling with it most of my life.
I’m sincere in what I say, and it’s the truth, concerning my
circumstances. For a short moment I fell asleep and did not know
what happened until I was arrested by the police.
I am a good person and have participated in a lot of good
things in the community and church events. If I only knew, I would
have helped at that moment. I called the media because I found out
the details then, and also I did not have a lawyer at the time, but I felt
really bad and wanted to let the community and everybody know that
I was sorry.
My family, and everybody, all I can offer is my apology and
ask them to please forgive me and don’t condemn me. And it’s been
very difficult for me, too.
I’ve been praying a lot and ask for mercy and compassion.
And I ask that my sentences run concurrent with each other at the
beginning of my sentence. I would like to get back into society and
to my family as soon as possible to support my family. Please give
me the chance to show you that I can be a productive member of the
community and able to maintain a respectful relationship with
society. Thank you very much, Your Honor.
Rodriguez Leyva claims trial counsel breached an essential duty in not
better preparing him for allocution at sentencing. He maintains he was prejudiced
8
because the court chose to run each of his sentences consecutively to the others.
In linking his own statement at allocution to the sentence he received, Rodriguez
Leyva relies on testimony elicited from his appellate attorney, who testified the
statement made at allocution “was not helpful to [Rodriguez Leyva’s] case” and
“whatever point or purpose they were trying to make wasn’t made properly.” But
even assuming the statement negatively impacted the sentence imposed by the
district court, according to Rodriguez Leyva’s PCR testimony, trial counsel
reviewed Rodriguez Leyva’s prepared statement and advised against it. It was
Rodriguez Leyva who was “very insistent” on reading that statement to the court
and, of course, who ultimately did so. See Pizarro v. State, No. 18-0223, 2019 WL
1294790, at *3 (Iowa Ct. App. Mar. 20, 2019) (noting it is ultimately the defendant
who has to personally exercise the right of allocution). We cannot find counsel
breached a duty under these facts. This claim fails.
C. Expert.
Rodriguez Leyva argues trial counsel breached a duty in failing to obtain an
expert in retrograde extrapolation; he broadly claims “[a]n expert could have only
helped him and could also have really helped if [Rodriguez Leyva’s] alcohol
consumption occurred after the time of the accident.” But he points to nothing in
the record before us that suggests Rodriguez Leyva did consume alcohol after
striking the bicyclists with his vehicle.
The State put forth evidence that Rodriguez Leyva’s BAC was .192—more
than twice the legal limit—when his blood was drawn a few hours after the incident.
And the State’s witness, criminalist Justin Grodinsky, who has a Ph.D. in
physiology and toxicology, opined that based on his retrograde extrapolation,
9
Rodriguez Leyva’s BAC would have been “anywhere between .232 and .292” at
the time of the accident. Rodriguez Leyva still has not shown that an expert exists
who would offer any opinions or testimony to contradict the State’s evidence. See
State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003) (“Trial counsel has no duty to
raise an issue that has no merit.”). He has not established his claim of ineffective
assistance. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (“When
complaining about the adequacy of an attorney’s representation, it is not enough
to simply claim that counsel should have done a better job.”).
IV. Conclusion.
Rodriguez Leyva’s claim about trial counsel’s failure to move for
suppression under section 321J.10(1)(a) is not preserved for our review. He has
not established his other two claims of ineffective assistance. We affirm the district
court’s denial of his PCR application.
AFFIRMED.