State v. McKettrick

• Decision Date: 22 January 1992
• Docket Number: No. 90-1836,90-1836
• Citation: State v. McKettrick, 480 N.W.2d 52 (Iowa 1992)
• Parties: STATE of Iowa, Appellee, v. Kenneth Raymond McKETTRICK, Appellant.
• Court: Iowa Supreme Court

Page 52

480 N.W.2d 52

STATE of Iowa, Appellee, v.Kenneth Raymond McKETTRICK, Appellant.

No. 90-1836.

Supreme Court of Iowa.

Jan. 22, 1992.

Linda Del Gallo, State Appellate Defender, and B. John Burns, Asst. Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., and Richard J. Bennett and Robert J. Glaser, Asst. Attys.Gen., for appellee.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, SNELL, and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

DefendantKenneth Raymond McKettrick appeals from the judgment and sentence entered by the district court after his conviction by a jury of assault with intent to commit serious injury, Iowa Code sections 708.1and708.2(1)(1989), assault causing bodily injury, Iowa Code sections 708.1and708.2(2), and escape, Iowa Code section 719.4(3).On this appeal, McKettrick contends that he was denied effective assistance of counsel because of his trial attorney's failure to object, on double jeopardy grounds, to McKettrick's prosecution and conviction of both assault with intent to commit serious injury and assault causing bodily injury.He also contends that his trial attorney rendered ineffective assistance in several other respects.

Because claims of ineffective assistance of counsel are more properly considered in postconviction relief proceedings where an evidentiary record can be developed on the circumstances surrounding counsel's performance, Washington v. Scurr, 304 N.W.2d 231, 235(Iowa1981), we affirm the judgment of the district court but preserve some of McKettrick's claims in the event that he chooses to file an application for postconviction relief.Cf.State v. White, 337 N.W.2d 517, 519-20(Iowa1983);Iowa Code § 663A.3.

I.Background facts and proceedings.From the evidence presented at trial, a jury could have found the following facts.Defendant McKettrick is an inmate at the Iowa State Penitentiary at Fort Madison.On May 10, 1990, McKettrick and inmates Luke Martin, Jr. and Ronald Mahers were in an outdoor exercise pen inside the prison walls.Inmate John Harvey was in an adjacent exercise pen.A chain-linked fence separated the two pens.McKettrick, Martin, and Mahers lifted the fence separating the two pens, entered Harvey's exercise pen, and proceeded to assault Harvey by repeatedly beating and kicking him.

Two correctional officers observed McKettrick, Martin, and Mahers beating inmate Harvey.McKettrick, along with the others, continued to beat Harvey even after the officers ordered them to stop.Once the officers entered Harvey's exercise pen, they had to restrain McKettrick and the others to get them to stop beating Harvey.

Thereafter, McKettrick, Martin, and Mahers, were charged by trial information with one count of assault with intent to commit serious injury, one count of assault causing bodily injury, and one count of escape.SeeIowa Code §§ 708.1,708.2(1),708.2(2),719.4(3).

Prior to trial, inmate Mahers pled guilty to assault causing bodily injury.SeeIowa Code §§ 708.1,708.2(2).At the joint criminal jury trial of McKettrick and Martin, Mahers testified for the defense that he had entered Harvey's exercise pen "to do as much damage to [Harvey] as [he] could," but that McKettrick and Martin had entered the pen solely to stop Mahers from killing Harvey.Several other inmates testified that McKettrick and Martin were merely trying to stop Mahers from assaulting Harvey.McKettrick and Martin did not testify.

The jury found McKettrick and Martin guilty on all three counts.The district court later sentenced McKettrick to a term of incarceration not to exceed two years on his conviction for assault with intent to commit serious injury.SeeIowa Code §§ 708.2(1),903.1(2).The court also sentenced McKettrick to a term of incarceration not to exceed one year on each of his convictions for assault causing bodily injury, and for escape.SeeIowa Code §§ 708.2(2),719.4(3),903.1(1)(b).The sentences were to run consecutively.SeeIowa Code § 901.8.The result was a total indeterminate sentence of not more than four years to begin at the expiration of the sentence McKettrick was then serving.¹

McKettrick has appealed, contending that he was denied effective assistance of trial counsel.None of the contentions raised on this appeal were presented to or considered by the trial court.Our review is de novo.Hinkle v. State, 290 N.W.2d 28, 30(Iowa1980).

II.Claims of ineffective assistance of counsel.In order for a defendant such as McKettrick to establish a claim of ineffective assistance of trial counsel, we have indicated that he must show: (1) that counsel's performance fell outside a normal range of competency; and (2) that the deficient performance so prejudiced the defendant as to give rise to a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.U.S. Const. amend. VI;Kane v. State, 436 N.W.2d 624, 627(Iowa1989);State v. Losee, 354 N.W.2d 239, 243(Iowa1984);Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984).Representation by counsel is presumed competent, and a defendant has the burden to prove by a preponderance of the evidence that counsel was ineffective.Kane, 436 N.W.2d at 627.Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily amount to ineffective assistance of counsel.Id.;Hinkle, 290 N.W.2d at 34.

Claims of ineffective assistance of counsel usually are not adjudicated on direct appeal because the attorney charged with ineffectiveness has not had an opportunity to respond to the allegations.See, e.g., State v. Poyner, 306 N.W.2d 716, 719(Iowa1981);State v. Coil, 264 N.W.2d 293, 296(Iowa1978).We usually preserve such claims for postconviction relief proceedings where an evidentiary record may be developed and a hearing held on counsel's alleged errors.See, e.g., State v. Allen, 348 N.W.2d 243, 248(Iowa1984).However, such claims may be adjudicated on direct appeal if there is a sufficient record available for a reviewing court to make a determination.Seeid;White, 337 N.W.2d at 519.Because a defendant must prove both incompetent representation and prejudice before succeeding on a claim of ineffective assistance of counsel, a reviewing court can affirm a conviction on direct appeal if the defendant has failed to prove prejudice, without deciding whether counsel's representation was incompetent.SeeTaylor v. State, 352 N.W.2d 683, 685(Iowa1984).

A.Claim of double jeopardy.McKettrick now contends that he was denied effective assistance of counsel because of his trial attorney's failure to object, on double jeopardy grounds, to McKettrick's prosecution and conviction of both assault with intent to commit serious injury, Iowa Code section 708.2(1), and assault causing bodily injury, Iowa Code section 708.2(2).Although we preserve this claim for a possible postconviction relief proceeding, we recognize that it involves a novel and substantial question of constitutional law and conclude that a criminal defendant such as McKettrick may not be convicted of both sections 708.2(1)and708.2(2) for a single assault.

1.The fifth amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."U.S. Const. amend. V.This clause provides three related protections, namely, protection against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65(1969);see alsoState v. Carlberg, 375 N.W.2d 275, 276(Iowa App.1985).These protections are enforceable against the states through the fourteenth amendment to the United States Constitution.Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707(1969).Because McKettrick was convicted of two offenses for a single criminal act, he is concerned in this appeal with the protection against multiple punishments for the same offense.²

Iowa Code section 708.2(1), which defines the crime of assault with intent to commit serious injury, provides, in part, as follows:

A person who commits an assault, ... with the intent to inflict a serious injury upon another, is guilty of an aggravated misdemeanor.

(Emphasis supplied.)Iowa Code section 708.2(2), which defines the crime of assault causing bodily injury, provides, in part, as follows:

A person who commits an assault, ... without the intent to inflict a serious injury upon another, and who causes bodily injury or disabling mental illness, is guilty of a serious misdemeanor.

(Emphasis supplied.)

The language of these provisions raises a question of first impression as to whether a criminal defendant can be convicted of both crimes based on a single assault.McKettrick contends that it is logically and factually impossible for an alleged assailant to commit a single assault both with the intent to inflict a serious injury and without the intent to inflict a serious injury.We agree.

2.In considering a double jeopardy claim within the multiple punishments context, we are guided by the general principle that the question of what punishments are constitutionally permissible is no different from the question of what punishments the legislature intended to be imposed.Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322, 331(1989), reh. den., 492 U.S. 932, 110 S.Ct. 12, 106 L.Ed.2d 627;United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487, 503(1989);Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-541, 81 L.Ed.2d 425, 433(1984), reh. den., 468 U.S. 1224, 105 S.Ct. 20, 82 L.Ed.2d 915Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535, 543(1983);Albernaz v. United...