IN THE COURT OF APPEALS OF IOWA

No. 16-1674

Filed December 6, 2017

JOSHUA DAVID MITCHELL,

 Applicant-Appellant, 

vs. 

STATE OF IOWA,

 Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Kevin McKeever, 

Judge.

An applicant appeals the district court’s denial of his application for 

postconviction relief. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

Joshua David Mitchell, Fort Dodge, appellant pro se.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

Joshua Mitchell appeals the district court’s denial of his application for 

postconviction relief (PCR). He asserts his trial counsel was ineffective for (1) 

allowing him to plead guilty when he claims his plea was not made voluntarily and 

intelligently, (2) failing to perform an adequate investigation, and (3) failing to move 

to suppress his confessions. He also asserts the PCR court erred when it excluded 

exhibits he sought to introduce.

I. Background Facts and Proceedings

Mitchell pled guilty to two counts of sexual abuse in the second degree, in 

violation of Iowa Code sections 709.1 and 709.3(1)(b) (2011). The trial information 

alleged that Mitchell committed multiple sex acts on his five- and nine-year-old 

daughters. Mitchell agreed to plead guilty to both counts in exchange for the 

State’s recommendation the sentences run concurrently. The trial court accepted 

the plea after finding it was entered voluntarily and intelligently. The court 

accepted the State’s recommendation and imposed two, twenty-five-year terms of 

incarceration, to be served concurrently. 

Mitchell filed two pro se applications for postconviction relief over the next 

few years, which were eventually amended by appointed counsel and came on for 

hearing on May 12, 2016. After hearing testimony from both Mitchell and his trial 

counsel, the PCR court denied Mitchell’s application. Mitchell appeals.

II. Standard of Review

We review claims of ineffective assistance of counsel de novo. Ennenga v. 

State, 812 N.W.2d 696, 701 (Iowa 2012). We review the court’s evidentiary rulings 

for an abuse of discretion. Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d 
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681, 685 (Iowa 2012). “An abuse of discretion occurs when the trial court exercises 

its discretion on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable.” Id.

III. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, an applicant must 

show (1) the attorney failed to perform an essential duty and (2) prejudice resulted 

to the extent it denied the applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 

641 (Iowa 2008). In order to show prejudice, an applicant must show that, but for 

counsel’s breach of duty, he would not have pled guilty. Ennenga, 812 N.W.2d at 

708.

A. Mental Condition

Mitchell contends his trial counsel provided ineffective assistance because 

counsel allowed him to plead guilty although his plea was not voluntarily or 

intelligently given due to his “mental conditions and medications.” Mitchell claims 

his long history of mental illness, including past diagnoses of ADHD, bipolar 

disorder, Asperger’s syndrome, and anxiety, and the medication prescribed when 

he was in custody awaiting the outcome of his case rendered his plea involuntary 

and unintelligent. 

The record reveals that Mitchell suffered from a variety of psychological and 

physiological symptoms from the time of his arrest on April 18, 2011, until the plea 

proceedings on July 7, 2011. Despite Mitchell’s claims that his mental condition 

and medications affected his capacity, the PCR transcript reveals his trial counsel 

was aware of Mitchell’s claims that he heard voices and was depressed. Mitchell’s 

trial counsel also stated Mitchell felt better on the prescribed medications and he 
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had no questions regarding Mitchell’s capacity or competency to render a plea. A 

review of the plea proceedings indicates Mitchell answered all the court’s 

questions appropriately and gave coherent statements forming a factual basis of 

the two charges. The PCR court found:

Although [Mitchell] obviously suffers from mental illness, he has not 

put forth any evidence that would suggest that his mental illness 

would result in a finding of either a diminished capacity at the time of 

the offense or a lack of competence at the time of the plea or 

sentencing hearings.

As to whether any medications Mitchell was taking affected his rendering of 

the plea, the State asserts Mitchell has waived any such claim. We agree, as the 

PCR court only ruled on the effect of Mitchell’s mental capacity, not on the effect 

of any of his medications, on the plea proceedings. But even if the PCR court had 

ruled on any effect of the medications Mitchell was taking, a review of the medical 

records made the day before the plea proceedings indicate Mitchell was not 

experiencing any side effects from the prescribed medications such that his plea 

would be involuntary or unintelligently made. Therefore, we conclude Mitchell has 

failed to prove trial counsel was ineffective in allowing him to plead guilty or that 

his PCR counsel was ineffective in not pursuing a ruling on whether Mitchell’s 

medications affected his ability to render his plea.

B. Investigation

Mitchell next asserts his trial counsel provided ineffective assistance 

because counsel did not perform an “adequate investigation” prior to his guilty 

plea. In support, Mitchell points to trial counsel’s lack of filing any pretrial motions, 

taking any depositions, or conducting “meaningful” discovery, and trial counsel’s 

failure to request a mental evaluation or review his mental health records. Mitchell 
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claims these omissions left him uninformed as to whether he should plead guilty 

or proceed to trial because he was not presented with all of the information or 

possible defenses at his disposal.

Trial counsel testified that he conducted his office’s standard discovery 

protocol, beginning with investigators interviewing Mitchell. The investigators 

notified counsel that Mitchell confessed to them that he sexually abused his 

daughters. Counsel then spoke with Mitchell and reviewed documents, including 

the interview reports, police reports, minutes of evidence, and Child Protection 

Center reports. Mitchell’s trial counsel made a strategic decision not to depose 

Mitchell’s daughters because he did not want to lock in, or have the children 

“rehearse,” their testimony that might be adverse to Mitchell should Mitchell choose 

to go to trial. Additionally, once counsel became aware of Mitchell’s numerous 

confessions to hospital staff, case workers, and investigators, and despite 

Mitchell’s assertion that he embellished his confessions, counsel was fearful of 

Mitchell perjuring himself should he go to trial. See Brewer v. State, 444 N.W.2d 

77, 83 (Iowa 1989) (“[W]e will not reverse where counsel has made a reasonable 

decision concerning trial tactics and strategy, even if such judgments ultimately 

fail.”).

Key to Mitchell’s decision to plead guilty was his desire to avoid a potentially 

longer “sentence” away from his family if he were to assert an insanity defense 

and, if successful, be civilly committed. For that reason, his trial counsel did not 

pursue an insanity or diminished capacity defense. Therefore, with Mitchell 

making the decision to not pursue such a defense, he cannot now claim his trial 
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counsel breached an essential duty in not pursuing an insanity defense for which 

counsel would then need to obtain a mental evaluation or review medical records. 

Moreover, trial counsel testified he met with Mitchell and observed his 

mental state first-hand. Mitchell told him he was doing much better, while in 

custody, after having his medications properly adjusted. Trial counsel then 

testified he had no concerns about Mitchell’s capacity or competency to 

understand the plea proceedings, what he was pleading to and the potential 

consequences of the court accepting the plea. Counsel testified he left the 

decision whether to plead guilty to Mitchell, then focused efforts on obtaining a 

favorable plea offer, which he did. As the State notes, Mitchell has not offered any 

evidence that would establish a more thorough investigation by trial counsel would 

have uncovered hidden exculpatory evidence that might have impacted Mitchell’s 

decision whether to plead guilty or go to trial.

In its ruling, the PCR court specifically noted it found trial counsel more 

credible than Mitchell on events related to the criminal case, including the level of 

investigation into the merits of the case and counsel’s deference to allowing 

Mitchell to make the final decision as to whether to enter a plea or proceed to trial. 

See Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984) (giving weight to the court’s 

findings of witness credibility). Therefore, Mitchell has failed to show either a 

breach of his counsel’s duty or that he was prejudiced by counsel’s performance. 

See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). 

C. Confessions

Mitchell next contends his trial counsel provided ineffective assistance 

because he did not file a motion to suppress Mitchell’s alleged involuntary 
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confessions. Mitchell asserts he was encouraged and persuaded to confess by a 

nurse because the nurse indicated it would be better for Mitchell’s family if he 

confessed. Mitchell also claims his mental instability contributed to his many 

involuntary confessions.

Upon our review of the record, we conclude Mitchell has failed to prove his 

counsel was ineffective in failing to file a motion to suppress. Although Mitchell 

alleged in his affidavit in support of his application for postconviction relief that a 

nurse coerced him into confessing, this alleged coercion is not a part of the minutes 

of evidence, and none of the witnesses listed would have testified to the alleged 

coercion. In addition, Mitchell focuses his claim of coercion on his confession to 

the nurse and ignores the numerous other confessions he made to law 

enforcement and DHS staff, including Mitchell’s confession to Officer Peiffer after 

the officer stated he could not promise help or leniency. The record does not 

support the idea that Mitchell was coerced in any way when he made his multiple 

confessions. 

In addition, the record does not support Mitchell’s claim that his mental 

instability contributed to his confessions. During the initial investigation, Mitchell 

clearly understood the gravity of the allegations against him and their potential 

consequences. The minutes of testimony state: 

While Officer Peiffer and DHS worker Jones were obtaining the 

search warrant, the defendant called Jones in front of Officer Ronald 

DeWitt who was stationed at the home pending the warrant. The 

defendant stated that he was a sex addict who masturbates at least 

once every day. That there is a room in the basement where all of 

his pornography is at and he advised that there would be DNA all 

over the floor of that room. At no time did Officer DeWitt ask the 

defendant any questions in reference to this investigation, he was 

there just to detain and secure the premises until a warrant would be 
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obtained. At the conclusion of the search warrant execution, the 

defendant asked Investigator Peiffer what he could do to avoid jail 

time. Officers believed this to be an odd question because he hadn’t 

been charged with anything and in a very short period of time went 

from proclaiming his innocence to asking how he could avoid jail 

time.

Trial counsel’s review of discovery and each confession revealed the 

essential part of the confession was consistent each time it was stated. The 

numerous, consistent confessions indicate Mitchell’s mental capacity was not 

diminished at the time each confession was made. The record reflects Mitchell 

was concerned about the length of time he could face if incarcerated or 

involuntarily committed and he made voluntary confessions in an effort to minimize 

his sentence. Therefore, Mitchell’s trial counsel was not ineffective in failing to file 

a motion to suppress.

IV. Excluded Exhibits

Finally, Mitchell asserts the PCR court erred when it excluded exhibits 

Mitchell sought to introduce from Drugs.com, a website listing information on 

prescription drugs. In excluding the exhibits, the PCR court stated it believed they 

were being offered to show the possible side effects of certain prescription 

medication but there were no nurses or doctors available for cross-examination as 

to how Mitchell may or may not have been affected by the medication he was 

taking. Therefore, the PCR court ruled the exhibits were inadmissible because 

they contained hearsay.

For the first time on appeal, Mitchell asserts Iowa Rule of Evidence 

5.803(17) provides an exception to the rule against hearsay for market reports. 

See State v. Heuser, 661 N.W.2d 157, 164-65 (Iowa 2003) (admitting labels from 
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boxes of cold medication under “market report” exception to hearsay rule). Since 

the PCR court did not rule on the exception, Mitchell has failed to preserve error. 

Mitchell alternatively asserts his PCR counsel was ineffective in failing to assert

the exception. Because the ordinary rules of error preservation do not apply to 

claims of ineffective assistance of counsel, we may proceed to evaluate his claim. 

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).

Upon our review of the record, we conclude Mitchell was not prejudiced by 

PCR counsel’s failure to assert the market report exception. See Ledezma, 626 

N.W.2d at 142 (“[B]oth elements [of an ineffective-assistance claim] 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 preformed deficiently.”). The 

documents Mitchell sought to introduce list general information and a number of 

side effects a person might experience when taking risperidone. The State argues, 

and we agree, that a person prescribed this drug may not experience all or any of 

the side effects listed. Further, the listed information is not specific to Mitchell and 

does not contain any name brand associated with risperidone that would generally 

be trusted by the public. See Heuser, 661 N.W.2d at 164-65. Moreover, nothing 

in the plea proceeding record suggests the medication risperidone was affecting 

Mitchell’s ability to give a voluntary and intelligent plea. With each question 

propounded by the court, Mitchell coherently responded and provided a factual 

basis for his plea. 

At the sentencing hearing, Mitchell stated he recalled entering the plea and 

had no reason to believe the sentence should not be pronounced. The PCR court 

found Mitchell was competent to enter his guilty plea and while he did experience 
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bouts of anxiety while in custody, the record does not support a finding that he 

experienced any of the side effects listed in the Drugs.com proffered exhibits at 

the time of his guilty plea.

V. Conclusion

Because trial counsel did not breach an essential duty in investigating 

Mitchell’s case, in failing to pursue a suppression of his confessions, or by allowing

Mitchell to plead guilty, and because Mitchell was not prejudiced by PCR counsel’s 

failure to assert the “market record” exception to the hearsay rule, Mitchell’s 

ineffective-assistance claims fail, and we affirm.

AFFIRMED.