IN THE COURT OF APPEALS OF IOWA No. 14
- 1043 Filed October 28, 2015

MARQUISE JIMMY JOHNSON , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, David F. Staudt , Judge.

Marquise Jimmy Johnson appeals from the district court ’ s denial of his application for postconviction re lief. AFFIRMED.

Andrew C. Abbott of Abbott Law Office, P.C. , Waterloo , for appellant. Thomas J. Miller, Attorney General, Mary A. Triick , Assistant Attorney General, Linda Fangman , County Attorney, and Kim berly A. Griffith , Assistant County Attorney, for appellee State.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.2

VAITHESWARAN, P residing J udge
. A jury found Marquise Johnson guilty of assault causing serious injury in connection with the stabbing of Marcus Harding . This cour t affirmed his conviction and sentence and preserved his ineffective

- assistance

- of counsel claims for postconviction relief. State v. Johnson , No. 12

- 1425, 2013 WL 3458151, at * 2
- 3 (Iowa Ct. App. July 10, 2013)

. Johnson filed a postconviction

- relief application raising several ineffective

assistance

- of

- counsel claims. The district court denied the claims following an evidentiary hearing. Johnson appealed

. Johnson challenges his original trial attorney ’ s failure “ to timely file notices of sel f

- defense or defense of others

. ” He also challenges his second trial attorney ’ s failure to argue good cause for an untimely filing of a self

- defense notice and his failure to insist on complete corroborating testimony from a certain witness

. To succeed o n his ineffective

- assistance

- of

- counsel claims , Johnson was required to show his attorneys breached essential dut ies and prejudice resulted. Strickland v. Washington , 466 U.S. 668, 687 (1984). The prejudice component requires a showing of a reasonable pr obability of a different outcome. State v. Maxwell , 743 N.W.2d 185, 19 6 (Iowa 2008). The law on self

- defense is clear. A defendant intending to rely on the defense is obligated to file a written notice of such intention “ within the time for filing pretrial motion s. ” Iowa R. Crim. P. 2.11(11)( c). The time limit is “ no later than 40 days after arraignment. ” Iowa R. Crim. P. 2.11(4). Failure to abide by the deadline will preclude the defendant from offering evidence on the issue3

“ without leave of c ourt for good cause shown. ” Iowa R. Crim. P. 2.11(11)(d). However, t he right of the defendant to present evidence on the defense is not limited by the rule. Id. Our de novo review of the record reveals the following facts. Johnson ’ s first attorney testified he was forced to withdraw as counsel due to a conflict of interest within his office. Before he withdrew, Johnson gave him no reason to believe the stabbing was an act of self

- defense. To the contrary, Johnson denied he stabbed the ot her man. According to the attorney, Johnson told him he “ did not stab the alleged victim, that the alleged victim would testify

. . . Mr. Johnson did not stab him. ” Nothing in Johnson ’ s statements to the first attorney would have placed the attorney on n otice that he would need to file a self

- defense notice

. Accordingly, we conclude his first attorney breached no essential duty in failing to file a notice of self

- defense and this ineffective

- assistance

- of

- counsel claim fails. See State v. Rice , 543 N.W. 2d 884, 88 8 (Iowa 1996) ( “ In assessing claims of ineffective assistance of counsel, a defendant ’ s conduct is examined as wel l as that of his attorney. ” ). We turn to the merits of Johnson ’ s in e ffective

- assistance

- of

- counsel claim against his second trial attorney, bypassing the error preservation concern raised by the State. See State v. Taylor , 596 N.W.2d 55, 56 (Iowa 1999). This attorney was appointed shortly before trial, in the wake of the first attorney ’ s withdrawal. Following the appointment, John son changed course and asserted he did indeed stab Harding , but acted in self

- defense. In light of this disclosure, Johnson ’ s4

second attorney filed a belated notice of self

- defense. He did not argue good cause for the late filing or seek a postponement o f the trial. T he sudden appointment of new counsel may constitute good cause for a late filing of a notice of defense. See State v. Jordan , 779 N.W.2d 751, 755 (Iowa 2010). Accordingly, Johnson ’ s second attorney could have argued his late appointment amounted to good cause for his belated notice of self

- defense and warranted full consideration of the defense. However, the attorney was placed on the horns of a dilemma. He testified Johnson did not wish to waive the speedy trial deadline ; “ he wanted to keep the trial date that was scheduled. ” The attorney ’ s “ fear was if ” he argued good cause, he “ would have been told by the court that [his] remedy [was] probably a continuance and [his] client did not want a conti nuance. ” Counsel chose to abide by Johnson ’ s wishes. We recognize counsel could have waived Johnson ’ s statutory right to a speedy trial without Johnson ’ s express consent. See State v. LeFlore , 308 N.W.2d 39, 41 (Iowa 1981); s ee also Paulson v. State , No. 12

- 1119, 2013 WL 2146462, at *2 (Iowa C t. App. May 15, 2013) (declining to find counsel ineffective for waiving speedy trial right and moving for a continuance)

. But, h ad he done
so, we are convinced there w ould have been no reasonable probability o f a different outcome. At best, a good cause finding for late filing of the self

- defense notice together with a continuance of trial would have garnered Johnson the ability to present corroborating testimony for his self

- defense theory. T he district

cour t permitted such testimony, albeit in truncated form. A w itness at the scene , Jalissa Simmons, was allowed to impugn the testimony of her sister Jaricka, which implicated Johnson in the stabbing. Jalissa5

categorically stated her sister did not see what h appened. Although the district court disallowed additional testimony from Jalissa about Johnson ’ s actions in defense of himself and others, her limited testimony reaffirmed Johnson ’ s testimony that Jaricka “ didn ’ t see anything. ” The jury was left to either believe Jaricka or believe Jalissa and Johnson. The result of trial

— a finding of guilt on the lesser

- included offense of assault causing serious injury rather than willful injury causing serious injury

— reveals that the jury es sentially believed Jalissa and Johnson even without additional testimony from Jalissa concerning Johnson ’ s efforts to wrest the knife from Harding. This result is precisely what Johnson sought . In a pro se closing statement to the jury, he stated: I can ’ t say that I was justified for doing what I did to Mr. Harding that night, but I feel that I had to protect my girl and me. Because he did enter the room with that knife. . . . I don ’ t want to hurt anybody. But I will do anything to protect my girl, whi ch I do love. And I feel that I did assault Mr. Harding, but I did not cause bodily injury to have intentions to hurt anybody because that wasn ’ t my intention to hurt Mr. Harding. He is a friend of mine. In the face of this record, we conclude Johnson failed to establish Strickland prejudice and his ineffective

- assistance

- of

- counsel claim against his second trial attorney also fails. We affirm the district court ’ s denial of Johnson ’ s postconviction relief application. AFFIRMED.