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 postconviction 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.
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SCHUMACHER, Judge.

Bernard Smith appeals the denial of his application for postconviction relief 

(PCR). Smith claims his trial counsel was ineffective for failing to investigate and 

interview eyewitnesses and in failing to object to statements made by the 

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 the 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 unopened bottles was in close proximity to Smith. On the day in question, 

there were several electricians working inside the restaurant. The restaurant 

manager confronted Smith. Smith refused to answer, stood up, and left the 

building. The restaurant manager 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 applying for employment. Following jury trial, 

Smith was convicted of second-degree burglary. 

II. 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). 
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III. 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 trial 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, 

Smith admitted the sentencing enhancement was applicable and was resentenced

on May 24, 2019. He did not file a second direct appeal. Smith’s March 2019 PCR 

application was denied 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 State’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 preponderance 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.
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929 N.W.2d at 818 (citation omitted); accord Strickland v. Washington, 466 U.S. 

668, 687 (1984). Failure to prove either prong is fatal to an ineffective-assistanceof-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 sufficient to undermine confidence in the outcome.” Strickland, 466 

U.S. at 694.

A. Failure to Investigate Witnesses

Smith claims his counsel breached an essential duty by not investigating 

and interviewing two electricians who were present during the burglary. Without 

determining whether counsel breached an essential duty by failing to investigate 

and interview the electricians, we reject Smith’s argument on the prejudice prong. 
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The electricians who were present during the burglary were later interviewed 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 by 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. See 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 restaurant 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:

Well, Mr. Smith was behind the bar and he’s got this green

grocery sack behind the bar with him. Where did it come from? It’s

directly in front of him sitting on the floor with the liquor bottles in it.

And the testimony was they don’t use these in the bar for any

purpose. And the testimony was Tracy Jones had never seen one of

these in the bar before, so where did it come from? Well, the Defendant

had to have brought this bag with him. And why would he bring the 

bag with him unless he was going to put something in it.

So he brought this bag with him because when he went into

that bar that morning he was going to steal liquor. That’s why he

brought this bag with him and that proves specific intent.

. . . .
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The sack, again why did he bring the green grocery bag with

him if he wasn’t going to steal and why was he hiding behind the bar

and why didn’t he say anything to Tracy when she started questioning

him?

. . . . 

And in this case we have both direct evidence that the

Defendant committed the crime in the form of testimony from Tracy

Jones who saw him behind the bar. Saw him hunched over with this

bag of liquor in front of him. That’s direct evidence. The bag is direct

evidence. Him having the bag is direct evidence of his intent to

commit a theft.

And the circumstantial evidence of his intent to commit a theft

is there in his actions in hiding behind the bar with a green bag. It’s

all circumstantial evidence to show what his intent was because he

didn’t actually pick up the bag and leave with 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 trial.” State v. Graves, 668 N.W.2d 860, 

874 (Iowa 2003) (quoting State v. Phillips, 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, the prosecutor linked the evidence 

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

misrepresentation of the evidence. It was within the prosecutor’s latitude to draw 

that inference from 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.

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

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

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

claim. The evidence presented at trial is inconsistent with Smith’s theory that he 

was in the restaurant to apply for employment. Smith was located “scrunched 
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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 the bar, Smith left the restaurant. 

Such evidence is not indicative of a job search. We find Smith unable to 

demonstrate prejudice due to the prosecutor’s statements in closing arguments. 

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 PCR 

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

AFFIRMED.