Herman Addison Jr v. State Of Iowa

• Decision Date: 20 October 2010
• Docket Number: No. 09-1109,No. 0-663,0-663,09-1109
• Parties: HERMAN ADDISON JR., Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
• Court: Iowa Court of Appeals

HERMAN ADDISON JR., Applicant-Appellant,

v.STATE OF IOWA, Respondent-Appellee.

No. 0-663

No. 09-1109

COURT OF APPEALS OF IOWA

Filed October 20, 2010

Appeal from the Iowa District Court for Webster County, Allan L. Goode, Judge.

Herman Addison Jr. appeals from the district court order denying his application for postconviction relief.

AFFIRMED.

Herman Addison Jr., Fort Madison, prose.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Ricki Osborn, County Attorney, and Jennifer Bonzer, Assistant County Attorney, for appellee State.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Tabor, J., takes no part.

DOYLE, J.

Herman Addison Jr. appeals from the district court order denying his application for postconviction relief. On appeal, he contends: (1) he was denied effective assistance of counsel when his trial counsel allowed him to execute incomplete written guilty plea forms; (2) the district court erred by not merging the crimes of identity theft and forgery, and (3) the district court erred by not articulating the reasons for consecutive sentencing. Upon our review, we affirm.

I. Background Facts and Proceedings.

In January 2007, Herman Addison Jr. paid for a purchase at a convenience store with a check from another's checking account without permission. Thereafter, the State filed a two-count trial information against Addison. Count I, as later amended, charged Addison with identity theft in violation of Iowa Code sections 715A.8(1) and 715A.8(2) (2007), an aggravated misdemeanor. Count I asserted Addison "with the intent to obtain a benefit did fraudulently obtain a checking account number belonging to [another] and attempted to use that checking account number to obtain property without the authorization of [the account owner]." Count II, as amended, charged Addison with forgery as a habitual offender in violation of sections 715A.1, 715A.2(d), ¹ 715A.2(a)(3), and 902.8, a class "D" felony. Count II asserted that Addison

with the intent to defraud [a convenience store and/or the account owner], did possess a writing which he knew to be forged, purporting to be the act of [the account owner] who did notauthorize that act, having twice previously been convicted of a felony.

In September 2007, Addison entered into a plea agreement with the State whereby Addison agreed to plead guilty to the reduced charges of aggravated misdemeanor forgery² and identity theft. In exchange, Addison would receive consecutive sentences of probation, and the sentences were to be imposed consecutive to an existing suspended sentence for willful injury, for which Addison was on probation. Addison then pled guilty and was sentenced according to the plea agreement.³ Addison did not appeal his convictions.

In October 2007, Addison's sentences of probation were revoked after Addison admitted he violated the terms of his probation by committing a theft from a grocery store and having a marijuana pipe in his possession. The court imposed two two-year sentences for Addison's convictions of aggravated misdemeanor forgery and identity theft. The court also imposed a five-year sentence for Addison's willful injury conviction. The court ordered that all three of Addison's sentences run consecutively, thus imposing a total of nine years imprisonment.

On November 25, 2008, Addison filed an application for postconviction relief alleging his trial counsel was ineffective in advising him to plead guilty to forgery and identity theft when there was no factual basis for the crimes. Additionally, Addison asserted the district court imposed an illegal sentence by failing to merge the forgery and identity theft charges, and the district court erred in failing to adequately state its reasons for the imposing consecutive sentences.

The matter proceeded to trial. Thereafter, the district court entered its order dismissing Addison's application. The court found there was a factual basis for Addison's pleas. Additionally, the court found that neither forgery nor identity theft was an included offense of the other. The court also concluded that Addison's consecutive sentences were imposed pursuant to a plea agreement and found no merit in Addison's complaint.

Addison now appeals.

II. Discussion.

On appeal, Addison asserts: (1) he was denied effective assistance of counsel when his trial counsel allowed him to execute incomplete written guiltyplea forms; (2) the district court erred by not merging the crimes of identity theft and forgery; and (3) the district court erred by not articulating the reasons for consecutive sentencing. For the reasons that follow, we disagree.

A. Ineffective Assistance of Trial Counsel.

The standard of review on appeal from the denial of postconviction relief is for errors at law. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989). To the extent Addison's claims involve constitutional rights, our review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). We give weight to the district court's factual findings, especially when concerning credibility assessments. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

In order to prevail on an ineffective-assistance-of-counsel claim, a defendant is required to show by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma, 626 N.W.2d at 142. "Failing to perform an essential duty means counsel's performance fell outside of the normal range of competency." State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005). To establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Although a defendant is required to prove both elements, we do not always need to address both elements. Ledezma, 626 N.W.2d at 142. Ifa claim lacks prejudice, the claim may be decided on that ground alone without deciding whether the attorney performed deficiently. Id.

Here, Addison specifically contends he was denied effective assistance of counsel when his trial counsel allowed him to execute incomplete written guilty plea forms. However, this is not a claim Addison asserted below in his application for postconviction relief. Addison's claim below was that "there was no factual basis for the plea agreement." The district court rejected that contention, finding a factual basis existed, and we reject it as well. Addison did not advance his current argument, and the district court did not rule on this unraised claim, since it had no opportunity to do so. We thus hold that Addison's current claim is not properly before us. See State v. Lewis, 675 N.W.2d 516, 521-22 (Iowa 2004) (discussing that on appeal we will not decide a case based upon a ground, even a constitutional ground, not raised by a party in the district court); DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding that an appellate court will not consider an issue raised for the first time on appeal).

Even assuming, arguendo, that Addison preserved this claim, we would not find it meritorious. Since it was not asked to, the court made no factual finding as to whether or not the forms were filled out at the time Addison signed them. Addison's trial counsel had no recollection as to whether the forms were filled out when signed by Addison, but admitted it was possible. Addison acknowledged at the trial on his postconviction relief application that what was written in the form was exactly the agreement to which he had agreed. Addison cannot demonstrate the requisite prejudice. Accordingly, even assuming theforms were not filled out when signed by Addison, we find his trial counsel was not ineffective.

B. Merger of the Convictions.

Addison next contends the district court erred by not merging the crimes of identity theft and forgery. He asserts identity theft is necessarily included in forgery and thus should have merged into the forgery. Our review is for correction of errors at law. Iowa R. App. P. 6.907 (2009).

Merger implicates the legality of the sentence. State v. Anderson, 565 N.W.2d 34, 343-44 (Iowa 1997). An illegal sentence can be challenged at any time, State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001), and we can address the issue even if it was not expressly raised below. State v. Carney, 584 N.W.2d 907, 910 (Iowa 1998). Under our merger statute, "[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted." Iowa Code § 701.9.

"To determine whether one crime is a lesser-included offense of another, we apply the impossibility test and look to the elements of the offenses in question." State v. Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). We look to the elements of the greater offense (aggravated misdemeanor forgery) to see if it can be committed without also committing the lesser offense (aggravated misdemeanor identity theft). See State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001). "If the greater offense cannot be committed without also committing the lesser offense, the lesser is included in the greater. We call this the impossibility test." Id.

The "elements test" is "an aid in using the impossibility test and is fully subsumed in it." Id. In comparing the elements of the two offenses, we look to "the statutory definition of the greater offense rather than the evidence by which the offense may be proved in a particular case." State v. Webb, 313 N.W.2d 550, 552 (Iowa 1981). "We place the applicable statutes side by side and examine their elements in the abstract." State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (quoting State v. Jeffries...