IN THE COURT OF APPEALS OF IOWA

No. 20

- 0410

Filed April 14, 2021

BERNARD ANTHONY SMITH

, Applicant

- Appellant,

vs.

STATE OF IOWA,

Respondent

- Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Bethany J. Currie

,

Judge.

Bernard Anthony Smith appeals from the denial of his application for post

conviction relief. AFFIRMED.

Gary Dickey of Dickey, Campbell & Sahag Law Firm, PLC

, Des Moines

, for

appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson , Assistant Attorney

General, for appellee State.

Considered by Mullins, P.J. , and May and Schumacher, JJ.2

SCHUMACHER

, J udge

.

Bernard Smith appeals the denial of his application for postconviction relief

(PCR). Smith claim s his trial counsel was ineffective for failing to investigate a nd

interview eyewitnesses and in failing to object to statements made by th e

prosecutor during closing arguments that misrepresented the evidence. We affirm

the decision of the district court.

I. Background Facts

The manager of an Ames restaurant discovered Smith inside on

September 20, 2017, during hours the establishment was not open to t he public.

Smith was previously employed at the restaurant ; however, his last day of

employment was June 13, 2017. At the time of discovery, Smith was “scrunched”

behind the bar where the unopened liquor was kept . A large green bag containing

three unop ened bottles was in close proximity to Smith

. On the day in question,

there were several electrician s working inside the restaurant. The restaurant

manager confronted Smith. Smith refused to answer , stood up, a nd lef t the

building. The restaurant manag er followed Smith outside

, and an officer in the

area apprehended Smith

. At trial, Smith’s counsel argued Smith’s presence in the

restaurant was for the purpose of apply ing for employment. Following jury trial,

Smith was convicted of second

- degree burglary.

I I . Standard of Review

“We generally review the denial of an application for [PCR] for correction of

errors at law.” Sauser v. State , 928 N.W.2d 816, 818 (Iowa 2019). “However, our

review is de novo when the basis for [PCR] implicates a constitutional violation.”

Linn v. State

, 929 N.W.2d 717, 729 (Iowa 2019).3

II I . Proceedings

After being found guilty of second

- degree burglary, Smith was subject to the

habitual offender enhancement under Iowa Code section 902.8 (2017)

. Smith was

sentenced to an indeterminate fifteen

- year period of incarceration

. Smith

appealed. On direct appeal, the Iowa Supreme Court affirmed the burglary

conviction but remanded the habitual offender enhancement for a new t rial or guilty

plea. Smith filed the instant application for postconviction relief on March 29,

2019. 1 Procedendo on the direct appeal issued April 30, 2019. Following remand,

Smit h admitted the sentencing enhancement was applicable and was resentenced

on May 24, 2019

. He did not file a second direct app eal

. Smith’s March 2019 PCR

application was de nied by the district court, and Smith appeals from the denial of

that application

.

IV . Analysis

Smith highlights two areas as demonstrating his trial counsel was

ineffective. First, Smith contends his counsel breached an essential duty by not

investigating and interviewing two electricians who were present in the restaurant

when Smith was discovered

. Second, Smith argues the prosecutor made

statements that misrepresented the evidence in the St ate’s closing argument and

his counsel breached an essential duty by failing to object to the statements

.

To establish an ineffective

- assistance

- of

- counsel claim requires the

applicant to show by a pre ponderance of the evidence that: “(1) trial counsel failed

to perform an essential duty, and (2) [the] failure resulted in prejudice.” Sauser

,

1 The instant appeal involves case PCCR051244. Smith filed a previous PCR

application in case PCCR050751 but such was dismissed on Smith’s motion.4

929 N.W.2d at 818 (citation omitted); accord Strickland v. Washington , 466 U.S.

668, 687 (1984). Failure to pro ve either prong is fatal to an ineffective

- assistance

of

- counsel claim. State v. Tompkins , 859 N.W.2d 631, 637 (Iowa 2015).

Under the first prong, “we begin with the presumption that the attorney

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

.

We “must indulge a strong presumption that counsel ’ s conduct falls within the wide

range of reasonable professional assistance.” State v. Haas , 930 N.W.2d 699,

703 (Iowa 2019) (citation omitted). An applicant must rebut the presumption by

proving trial counsel “perform[ed] below the standard demanded of a reasonably

competent attorney.” Id. (citation omitted). “This is more than a showing that a

trial strategy backfired or that another attorney would try the case differently.”

State v. Lorenzo Baltazar , 935 N.W.2d 862, 869 (Iowa 2019)

. “We will not find

counsel incompetent for failing to pursue a meritless issue.” State v. Brubaker

,

805 N.W.2d 165, 171 (Iowa 2011).

Under the second prong, to establish prejudice, “a[n] [applicant] must show

a reasonable probability that the result of the trial would have been different.” State

v. Ambrose , 861 N.W.2d 550, 557 (Iowa 2015). “A reasonable probability is a

probability su fficient to undermine confidence in the outcome.” Strickland , 466

U.S. at 694.

A. Fai lure to Investigate Witnesses

Smith claims his counsel breached a n essential duty by not investigating

and interviewing two electricians who were present during the bur glary. Without

determining whether counsel breached an ess ential duty by failing to investigate

and interview the electricians, we reject Smith’s argument on the prejudice prong.5

The electricians who were present during the burglary were later interviewe d by

the State, and although they both remembered working inside the restaurant that

day, neither of them remembered seeing Smith. Additionally , Smith stated at the

postconviction trial that he had “no idea what they would say.” Smith , therefore,

failed to prove b y a preponderance of the evidence that his counsel’s failure to

investigate and interview the electricians resulted in prejudice. Smith has failed to

demonstrate a reasonable probability that the result of the trial would have been

different

. S ee Ambrose , 861 N.W.2d at 557

. We reject Smith’s first claim.

B. Failure to Object to Inferences in State’s Closing Argument

Smith also contends the prosecutor made statements in closing arguments

that misrepresented the evidence and that his counsel breached an essential duty

by not objecting to them. Specifically, Smith argues the prosecutor claimed Smith

brought the green bag into the restauran t or otherwise possessed it once inside,

and because the State presented no evidence at trial that Smith brought in the

bag, trial counsel breached an essential duty by failing to object. Smith cites to the

trial transcript , where the prosecutor made the alleged objectionable statements

during closing arguments:

W e l l

, M r

. S mi t h wa s b e h in d t he b a r an d h e ’ s g ot t h i s g r e e n

gr o c e ry s a c k b e h i nd t h e b a r w it h h i m

. W h er e d id i t c om e f r o m? I t ’ s

d i r ec t l y i n f r o n t o f h i m s i tt i n g o n t he f l o o r w i t h th e l iq u o r b ot t l e s i n i t

. A n d th e t e s ti m o n y w a s t he y d on ’ t u s e t h e se in t h e ba r f o r a n y

pu r p o s e

. A n d t h e t e s t i m on y w a s T r a c y J o n es h a d ne v e r s ee n o ne o f

t he s e in t h e b a r b ef o r e

, so w h er e d id i t c om e f r o m? W el l

, t h e D e f en d a n t

h a d t o h a v e br o u g ht t h is b a g wi t h h i m. A nd w h y wo u l d h e b r i ng t h e

b a g w it h h im u n l e ss h e w as g o in g t o pu t s om e t h i n g i n it.

S o h e b r o u g ht t h is b a g wi t h hi m b e c au s e wh e n he w e n t i n t o

t ha t b ar t h a t m o r n in g h e wa s g oi n g t o s t e a l l i q u or

. T h at ’ s wh y h e

br o u g ht t h i s b a g wi t h h i m a n d t h at p r o v es s p e c if i c in t e n t.

. . . .6

T h e sa c k

, a ga i n wh y d i d h e b ri n g t h e g r e en g r o c er y b a g w i t h

h i m i f h e w as n ’ t g oi n g to s t e a l a n d w h y w a s he h i d i ng b e hi n d t h e b a r

a n d w h y d i d n ’ t h e sa y a ny t h i ng t o T ra c y w h en s h e s t a r t ed q u es t i o n i ng

h i m?

. . . . A n d in t h i s c a s e w e h a v e b o t h d i r e c t e v i de n ce t h a t t h e

D e fe n d a nt c o m m it t e d t h e c r im e i n t h e f or m o f t e s t im o n y f ro m T ra c y

J o ne s w ho s a w hi m b eh i n d t he b a r. S aw h i m hu n c h e d o v e r w i t h t hi s

b ag o f l iq u o r i n f r o nt o f h i m. T h a t ’ s d i r e ct e v id e n c e

. T h e b a g i s d i r e ct

e v i d en c e

. H im h a v i ng t h e ba g i s d i r e c t e v i de n c e o f h i s i n t e n t t o

c om m i t a t h e f t.

A n d th e c i r cu m s t an t i a l ev i d e nc e o f hi s i nt e n t t o c o m m it a t h ef t

i s t h e r e i n h is a c t i on s i n h i d i n g b e h in d t he b a r wi t h a gr e e n b a g

. It ’ s

al l c i r cu m s t an t i a l ev i d e nc e t o s h o w w h a t h is i n te n t w a s b e c au s e h e

d i d n ’ t a c t u al l y pi c k up t h e ba g a n d l e a v e w i t h it.

We begin our analysis concerning Smith’s second argument by

acknowledging a prosecutor “ is entitled to some latitude during closing argument

in analyzing the evidence admitted in the tr i al.” State v. Graves , 668 N.W.2d 860,

874 ( Iowa 2003 ) (quoting State v. Phi llips , 226 N.W.2d 16, 19 (Iowa 1975))

.

“Moreover, a prosecutor may argue the reasonable inferences and conclusions to

be drawn from the evidence.” Id. Here, t h e prosecutor linked the evidence

admitted to Smith’s intent to commit theft and such inference was not a

misrepresen ta t ion of the evidence. It was within the prosecutor’s lat itude to draw

that inference fro m the evidence. Because counsel has no duty to raise a meritless

claim, Smith ’ s counsel was not ineffective for failing to raise the argument

. We

conclude trial counsel did not breach an essential duty in failing to object.

E ven if we assume that Smith’s trial counsel should have objected to the

prosecutor’s statements, Smith failed to demonstrate there wa s a reasonable

probability the jury would have reached a different verdict , which is fatal to his

claim

. The evidence presented at trial is in consistent with Smith’ s theory that he

was in the restaurant to a pply for employme nt. Smith was located “scrunched7

down” behind the bar during hours the restaurant was not open to the public next

to a bag containing bottles of alcohol. Rather than respond to the restaurant

manager’s inquiries when discovered behind th e bar, Smith left the restaurant.

Su ch evidence is not indicative of a job search

. We find Smith unable to

demonstrate prejudice due to the prosecutor’ s statements in closing argument s

.

See Ambrose , 861 N.W.2d at 557. We reject Smith’s second claim.

V. Conclusion.

Having reviewed the claims presented to us , we conclude that the PC R

court properly denied Smith ’ s PCR application and we affirm.

AFFIRMED.