IN THE COURT OF APPEALS OF IOWA

No. 18-1032

Filed April 15, 2020

SANTONYO SIMA PENDLETON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel A. 

Dalrymple, Judge.

Santonyo Pendleton appeals the district court’s denial of his application for 

postconviction relief. AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee State.

Considered by Doyle, P.J., May, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

MAHAN, Senior Judge.

Santanyo Pendleton appeals the district court’s denial of his application for 

postconviction relief following his 2015 convictions of sexual abuse in the third 

degree, raising claims of ineffective assistance of counsel and prosecutorial 

misconduct. Upon our review, we affirm the court’s order denying Pendleton’s 

application for postconviction relief. 

I. Background Facts and Proceedings

In its opinion affirming Pendleton’s conviction on direct appeal, this court 

set forth the following facts:

On December 3, 2014, shortly before 2:00 a.m., Waterloo 

police officers responded to a 911 call regarding a nonresponsive 

woman at Pendleton’s home. Although officers and medics 

attempted resuscitation, the woman never regained consciousness 

and was later pronounced dead. An autopsy indicated the woman 

died accidentally as a result of “acute mixed drug intoxication.” At 

the time of the woman’s death, she had a blood alcohol content of 

.344 and had methamphetamine in her system. The medical 

examiner opined that either the alcohol or the methamphetamine 

could have caused her death on its own but death likely resulted from 

the combined effect of the substances.

As part of the investigation immediately following the woman’s 

death, officers took and searched Pendleton’s cellular phones. Text 

messages on the phones corroborated Pendleton’s claim that he and 

the woman had met to engage in a consensual sexual encounter. 

However, the officers recovered three videos from Pendleton’s 

phones that were recorded in the early morning hours of December 

3, one of which showed him digitally penetrating the woman while 

she appeared to be asleep or unconscious. . . .

. . . . In the main video, Pendleton records the woman naked 

and laying in a bed. Pendleton can be heard saying, “She’s drunk 

as hell, tripping out.” He moves her hair from her face, and the 

woman remains with her eyes shut; she does not respond. Thirtynine seconds into the video, the woman can be seen opening and 

closing her mouth. Less than thirty seconds later, Pendleton begins 

digitally penetrating the woman. She does not visibly respond, and 

Pendleton narrates, “She’s drunk as hell; look at this shit.” The entire 

video lasts one minute and thirty-five seconds, and the woman never 

opens her eyes or reacts to either Pendleton’s actions or comments.
3

State v. Pendleton, No. 15-1115, 2016 WL 4384653, at *1 (Iowa Ct. App. Aug. 17, 

2016).

The State charged Pendleton with sexual abuse in the third degree, in 

violation of Iowa Code section 709.4(1)(d) (2015) (“A person commits sexual 

abuse in the third degree when the person performs a sex act . . . [and t]he act is 

performed while the other person is mentally incapacitated, physically 

incapacitated, or physically helpless.”). Following trial, the jury found Pendleton 

guilty as charged. Pendleton admitted he was an habitual offender. The district 

court sentenced him to a term of incarceration not to exceed fifteen years, with a 

three-year mandatory minimum.

This court affirmed Pendleton’s conviction on direct appeal, rejecting his 

challenges to trial counsel’s failure to request the jury be instructed on lesserincluded offenses and the limited purpose for which an interrogation video could 

be considered and trial counsel’s failure to move for judgment of acquittal on the 

basis the State did not prove the decedent was still alive at the time of the sex act. 

See id. at *3–4. The court determined, “Because the evidence of Pendleton’s guilt 

is overwhelming, Pendleton is unable to establish how counsel’s alleged failures 

affected the result of the proceeding.” Id. at *3.

Pendleton filed an application for postconviction relief (PCR), which was 

amended through counsel. Following trial, the court entered an order denying 

Pendleton’s application. Pendleton appealed. Facts specific to his claims on 

appeal will be set forth below.
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II. Standards of Review

“Generally, an appeal from a denial of an application for postconviction relief 

is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750 

(Iowa 2016) (citation omitted). However, “ineffective-assistance-of-counsel claims 

are reviewed de novo.” Id. 

III. Ineffective Assistance of Counsel

Pendleton contends his trial counsel was ineffective in failing to call his 

sister, Jalila, to testify at trial and PCR counsel was ineffective in failing to argue 

Jalila’s “testimony could have advanced the consent theory of the defense that 

was presented and a no-knowledge theory that should have been presented.” To 

prevail on a claim of ineffective assistance of counsel, Pendleton must show 

“(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” State 

v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing Strickland v. Washington, 466 

U.S. 668, 687 (1984)). “[C]ounsel has no duty to raise an issue that has no merit.” 

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). A claim of ineffective 

assistance of counsel fails if either element is lacking. See State v. Clay, 824 

N.W.2d 488, 495 (Iowa 2012). 

Jalila testified at the PCR trial. She stated she was at Pendleton’s home 

when the woman arrived on the night of the incident. Jalila testified the woman 

“just looked a little bit, like, off I would say. Like she wasn’t—like she was there 

but she wasn’t.” According to Jalila, Pendleton and the woman walked to the store 

for drinks and when they got back, they appeared to be getting along; “They were 

laughing and giggling.” Jalila stated Pendleton and the woman went into a 

bedroom; the door was halfway open, and Jalila could hear them playing music, 
5

talking, “taking pictures,” and engaging in sexual activity. Later, Pendleton asked 

Jalila for help because he thought the woman was “dead.” Jalila stated that 

Pendleton’s attorney, Nichole Watt, “talked to me about what [she] saw” and told 

her that she “might” be called as a witness. Jalila also completed a written 

statement about what she had seen, which she provided to Attorney Watt. 

Attorney Watt also testified at the PCR trial. She explained the defense 

theory as follows: 

My defense in this case was if the girl—if the woman had not died 

and she were alive to come and testify, would she have cared that 

this happened to her. Would she have still claimed that she didn’t 

consent to it in some way since they had already had sex twice. I 

mean, would she have been happy to have this done to her if it had 

woken her up.

Attorney Watt also stated, “I did [also] try to argue that she wasn’t incapacitated, 

but she was definitely snoring [in the video].” Attorney Watt explained that she 

“wrote out questions for all potential witnesses in this case.” She stated she talked 

to Jalila and Pendleton’s mother, but “we decided that there also was no need for 

their testimony because it really had nothing to do with our defense. It was things 

that they would have seen, but they didn’t add anything to our case.” Attorney 

Watt testified her decision not to call Jalila to testify was a “tactical decision.” Cf. 

Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (noting “strategic decisions 

made after ‘thorough investigation of law and facts relevant to plausible options 

are virtually unchallengeable’” (quoting Strickland, 466 U.S. at 690–91)).

The PCR court observed that Attorney Watt argued the act was consensual. 

The PCR court rejected Pendleton’s claim with regard to Jalila’s testimony as a 

tactical decision by counsel, further finding, “Her testimony per the affidavit added 
6

no facts not already contained in the trial record.” We agree and further conclude 

that Pendleton is unable to establish Strickland prejudice. The video from 

Pendleton’s phone clearly shows the woman naked and snoring, while Pendleton 

stated “she drunk as hell, trippin’ out,” “she ready for this dick,” “she drunk as hell, 

look at this” as he penetrated her vagina with his fingers. While Pendleton claimed 

he was “joking” and “just playing around,”1the video speaks for itself and dispels 

any question that Pendleton was not aware the woman was incapacitated or that 

she consented to the sexual acts. Considering the overwhelming evidence of

Pendleton’s guilt, there is no reasonable probability of a different result had Jalila 

been called to testify. Cf. State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019) 

(holding defendant did not establish Strickland prejudice where there was 

overwhelming evidence of guilt and the challenged testimony was merely 

cumulative). We affirm on this issue.

IV. Prosecutorial Misconduct

Pendleton raises a claim of prosecutorial misconduct relating to the 

prosecutor’s closing argument, arguing the prosecutor “misrepresented” the 

statements of a physician and defense counsel during trial. Pendleton 

acknowledges “this issue was not raised in district court proceedings or on appeal.” 

Pendleton also makes a fleeting reference to PCR counsel’s failure to raise the 

issue. Because this claim was not raised before or decided by the PCR court, it is 

unpreserved for our review, and we decline to address it. See Lincoln v. State, 

 

1 We observe the PCR court described Pendleton’s credibility at the PCR trial as 

“laughable,” and the court further stated, “Pendleton’s claim he was looking for 

cigarettes when the video clearly shows him digitally penetrating [the woman] was 

a blatant disregard for the truth.”
7

No. 18-0285, 2019 WL 6358303, at *2 (Iowa Ct. App. Nov. 27, 2019) (declining to 

reach claim of ineffective assistance of PCR counsel that was not raised “in any 

form below”); see also Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is 

a fundamental doctrine of appellate review that issues must ordinarily be both 

raised and decided by the district court before we will decide them on appeal.”).

Having addressed those claims properly before us on appeal, we affirm.

AFFIRMED.