IN THE COURT OF APPEALS OF IOWA

No. 17-0877

Filed December 19, 2018

JUSTIN WILLIS SWAN,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Wittig, 

Judge.

Justin Swan appeals the denial of his application for postconviction relief. 

AFFIRMED.

Thomas M. McIntee, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant 

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

Justin Swan appeals the denial of his application for postconviction relief 

(PCR). He contends the PCR court failed to comply with Iowa Code section 822.7 

(2009) by failing to enter necessary findings and conclusions relating to each of 

the issues he presented for relief. Further, he challenges the seventy percent 

mandatory minimum sentence as cruel and unusual punishment. Finally, Swan 

makes several claims of ineffective assistance against both his trial and PCR 

counsel. 

I. Background Facts and Proceedings

This case arises out of a 2009 convenience store armed robbery in 

Dubuque. Swan was charged with robbery in the first degree. See Iowa Code 

§§ 711.1, 711.2. A jury found Swan guilty and the court sentenced Swan to a term 

of incarceration not to exceed twenty-five years with a mandatory minimum of 

seventy percent for the robbery offense, pursuant to Iowa Code section 902.12(5).

1

 

On direct appeal, the supreme court affirmed Swan’s conviction.

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Swan filed a pro se PCR application in which he claimed his trial counsel 

was ineffective, DNA testing was performed on contaminated evidence, illegal 

interrogations were conducted leading to coerced confessions, and the media 

publicized false and suppressed information yet a change in venue was not 

granted. After the court appointed Swan counsel, he amended his petition to 

allege his sentence of incarceration in the amount of twenty-five years with a 

 

1 Swan was also charged and convicted of two offenses not pertinent to this PCR appeal.

2 Swan’s sentence was affirmed in part, vacated in part, and remanded for the limited 

purpose of vacating a sentencing provision requiring reimbursement for attorney fees.
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seventy-percent mandatory minimum was cruel and unusual punishment as 

applied to him and because his culpability is grossly disproportionate to the 

imposed sentence. He also claimed his due process rights were violated because 

of statements made by the State in its closing argument which Swan argues were 

not supported by the evidence and materially prejudiced him.

The State resisted the application and moved for summary disposition, 

contending there were no issues of material fact in dispute. The court initially 

scheduled a hearing but cancelled it on Swan’s request in order to allow time for

discovery. After several continuances and substitutions of Swan’s PCR counsel, 

the State filed an amended motion for summary disposition, further articulating that 

there were no issues of material fact in dispute and if there were any violations, 

they would be harmless error. The court scheduled the motion to be heard on the 

same day as the trial. Ten days before the trial, Swan filed a second amended 

PCR application, repeating his claims of ineffective assistance of counsel and 

adding allegations that trial counsel failed to object to testimony regarding a letter 

Swan wrote in jail in which he described his motivation for the robbery and 

prosecutorial misconduct for statements made by the prosecutor during closing 

arguments. Further, he claimed his trial counsel failed to appeal these issues. 

Lastly, Swan argued the statements made by the prosecutor in her closing 

argument also violated his due process rights. Swan requested his conviction be 

vacated and he be granted a new trial.

On May 26, 2016, the court held an evidentiary trial during which it also 

considered the State’s motion for summary disposition. Swan called no witnesses 

and the State only called Swan’s trial counsel. On May 5, 2017, the court denied 
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and dismissed Swan’s application, finding he was not entitled to relief on any 

ground presented. Swan filed a motion to enlarge or amend pursuant to Iowa Rule 

of Civil Procedure 1.904(2), asking the court to clarify its order. The court enlarged 

its order, providing further specific findings on several of Swan’s claims. Swan 

appeals. 

II. Standard of Review

Generally, we review PCR proceedings for correction of errors at law. See

Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). We review ineffectiveassistance-of-counsel claims de novo. See id.; Lado v. State, 804 N.W.2d 248, 

250 (Iowa 2011) (we still apply a de novo review although applicant “has a 

statutory, not constitutional right to effective assistance of counsel on 

postconviction relief”). In order to prove his ineffective-assistance claims, Swan 

must establish deficient performance and resulting prejudice. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 

2018). “[T]he court may consider either the prejudice prong or breach of duty first, 

and failure to find either one will preclude relief.” State v. Lopez, 872 N.W.2d 159, 

169 (Iowa 2015). 

To establish deficient performance, the “applicant must demonstrate the 

attorney performed below the standard demanded of a reasonably competent 

attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “We presume 

defense counsel acted competently.” Lopez, 872 N.W.2d at 169. “We assess 

counsel’s performance ‘objectively by determining whether [it] was reasonable, 

under prevailing professional norms, considering all the circumstances.’” Nguyen 

v. State, 878 N.W.2d 744, 752 (Iowa 2016) (quoting Dempsey v. State, 860 N.W.2d 
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860, 868 (Iowa 2015)). “In determining whether an attorney failed in performance 

of an essential duty, we avoid second-guessing reasonable trial strategy.” Everett 

v. State, 789 N.W.2d 151, 158 (Iowa 2010). An applicant must also prove the 

counsel’s failure to perform an essential duty resulted in prejudice. Prejudice 

occurs when “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 690–91). 

“Reasonable probability” is defined as “a probability sufficient to undermine 

confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694).

III. Analysis

A. Section 822.7

Swan first contends the PCR court failed to comply with Iowa Code section 

822.7 and enter necessary findings and conclusions relating to each of the issues 

he presented in its final ruling. He claims the PCR court failed to address his 

allegations that counsel was ineffective involving: (1) the failure to object to the 

admission of testimony regarding his jailhouse letter; (2) the failure to object to 

statements of the prosecutor constituting misconduct; (3) “concession of guilt

issue”; and (4) his claim of cruel and usual punishment pursuant to article 1, section 

17 of the Iowa Constitution. 

The court, in ruling on PCR applications, “shall make specific findings of 

fact, and state expressly its conclusions of law, relating to each issue presented.” 

Iowa Code § 822.7. “[S]ubstantial compliance is sufficient. Even if the court does 

not respond to all of the applicant’s allegations, the ruling is sufficient if it responds 

to all the issues raised.” Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006). A 
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review of both the trial court’s order on PCR and the order following Swan’s motion 

to enlarge or amend shows the court addressed the issues Swan raises on appeal, 

though it did not respond to every one of Swan’s allegations on these issues.3 We 

therefore find the trial court substantially complied with section 822.7. Swan also 

includes references to a claim of ineffective assistance of counsel in this section 

of his appellate brief but fails to provide any argument. We deem this issue waived. 

See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue 

may be deemed waiver of that issue.”); see also Soo Line R.R. v. Iowa Dep’t of 

Transp., 521 N.W.2d 685, 691 (Iowa 1994) (“[R]andom mention of [an] issue, 

without elaboration or supportive authority, is insufficient to raise the issue for our

consideration.”).

B. Cruel and Unusual Punishment

Swan also argues his sentence was illegal and the seventy percent 

mandatory minimum on his twenty-five year sentence of incarceration is cruel and 

unusual punishment as applied to him under recent precedent. He contends the 

same principles the supreme court applied in State v. Lyle, 854 N.W.2d 378, 404

(Iowa 2014), namely that a statutory scheme requiring mandatory minimums is 

unconstitutional for juvenile offenders because it precludes the district court from 

considering any circumstances based on youth or conduct in mitigation of 

punishment, also apply to him. He argues that as a nineteen-year old at the time 

 

3 We agree the district court did not address issues contained in Swan’s initial pro se PCR 

application, specifically his allegations about DNA testing, illegal interrogations, coerced 

confessions, and medical evidence supporting intoxication. However, Swan provided no 

evidence at the PCR trial and made no legal arguments in support of these allegations in 

his post-trial brief to the district court. Further, he has made no argument concerning 

these issues on this appeal. Therefore, we deem these issues waived. See Iowa R. App. 

P. 6.903(2)(g)(3).
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of the robbery, he had the equivalent mental development and reasoning capacity 

as an offender under eighteen. He contends he should be treated like a juvenile 

offender with the trial court having the discretion to consider attendant 

circumstances as mitigating factors. He further claims his PCR counsel was 

ineffective in failing to present any evidence regarding the equivalency of 

developmental deficits of juvenile and nineteen-year olds, which prevented the 

PCR court from granting Swan’s requested relief on his claim of cruel and unusual 

punishment. He requests a new PCR proceeding and asks that the logic and 

protections granted juvenile offenders in several supreme court cases be extended 

to nineteen-year olds.4 

“An unconstitutional sentence is an illegal sentence. Consequently, an 

unconstitutional sentence may be corrected any time.” Lyle, 854 N.W.2d at 382.

“[W]e review an allegedly unconstitutional sentence de novo.” Id. Here, Swan was 

an adult at the time of the instant offenses. “[T]he line between being a juvenile 

and an adult was drawn for cruel and unusual punishment purposes at eighteen 

years of age.” State v. Seats, 865 N.W.2d 545, 556–57 (Iowa 2015); accord Roper 

v. Simmons, 543 U.S. 551, 574 (2005). Additionally, the court in Lyle expressly 

limited its application to juveniles and its holding “has no application to sentencing 

laws affecting adult offenders.” Lyle, 854 N.W.2d at 403. Further, Lyle did “not 

 

4 See generally State v. Harrison, 914 N.W.2d 178 (Iowa 2018); In re T.H., 913 N.W. 2d 

578 (Iowa 2018); State v. Crooks, 911 N.W.2d 153 (Iowa 2018); State v. Zarate, 908 

N.W.2d 831 (Iowa 2018); State v. Roby, 897 N.W.2d 127 (Iowa 2017); State v. Graham, 

897 N.W.2d 476 (Iowa 2017); State v. Propps, 897 N.W.2d 91 (Iowa 2017); State v. 

Richardson, 890 N.W.2d 609 (Iowa 2017); State v. Sweet, 879 N.W.2d 811 (Iowa 2016); 

State v. Louisell, 865 N.W.2d 590 (Iowa 2015); State v. Seats, 865 N.W.2d 545 (Iowa 

2015); State v. Lyle, 854 N.W.2d 381 (Iowa 2014); State v. Hoeck, 843 N.W.2d 67 (Iowa 

2014); State v. Ragland, 836 N.W.2d 107 (Iowa 2013); State v. Pearson, 836 N.W.2d 88 

(Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013).
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move any of the lines that currently exist in the sentencing of adult offenders.” Id. 

We, like the PCR court, must rely on applicable precedent. The PCR court did not 

err in finding the mandatory minimum of Swan’s sentence was not cruel and 

unusual punishment.5

C. Ineffective Assistance of Counsel

Swan makes several claims of ineffective assistance of counsel. We will 

address them in turn. Swan first claims his PCR counsel provided ineffective 

assistance for failing to present evidence on the equivalency of the developmental 

deficits of nineteen year olds in support of his cruel-and-unusual-punishment claim. 

As determined above, Swan’s claim has no merit. Therefore, Swan’s PCR counsel 

was not ineffective. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“Counsel 

has no duty to raise an issue that has no merit.”). Even if counsel had presented 

evidence on this issue, the trial court was still required to follow precedent and 

statutory authority to sentence Swan to a mandatory minimum on the first-degree 

robbery offense. Thus, Swan’s counsel was neither under a duty to present 

evidence on Swan’s mental-development-and-reasoning capacity, nor was Swan 

prejudiced by his counsel’s failure to do so. 

Swan also claims he received ineffective assistance because his trial 

counsel did not object to testimony about a letter6 Swan wrote while in jail. A jail 

 

5 We see no reason to deviate from this court’s prior holdings declining to expand Lyle. 

See, e.g., Nassif v. State, No. 17-0762, 2018 WL 3301828, at *1 (Iowa Ct. App. July 5, 

2018), further review denied (Sept. 13, 2018); Smith v. State, No. 16-1711, 2017 WL 

3283311, at *1–2 (Iowa Ct. App. Aug. 2, 2017), further review denied (Dec. 7, 2017); 

Thomas v. State, No. 16-0008, 2017 WL 2665104, at *1–2 (Iowa Ct. App. June 21, 2017).

6 While the letter was admitted into evidence during the PCR hearing, it was not included 

as part of our record. We are therefore limited to the district court’s order and the trial 

transcript as to its contents.
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employee, whose duties included logging inmate correspondence and reading 

outgoing mail, testified to a portion of the letter’s contents. He testified that in the 

letter, Swan wrote that when he committed the robbery he “was just thinking 

MONEY.” The letter itself was neither offered nor admitted into evidence during 

the criminal trial. Swan contends counsel should have objected to the testimony 

about the letter because it was not admitted into evidence or authenticated prior to 

the testimony of its contents. Further, he contends the testimony was hearsay. 

Pretrial detainees do not have any subjective expectation of privacy in a 

non-privileged letter so such a letter, and its contents, are admissible against them. 

State v. Ruan, 419 N.W.2d 734, 737 (Iowa Ct. App. 1987). Further, “Iowa law 

permits prison officials acting in the ordinary course of their duties to monitor 

communications of prison inmates.” State v. Washburne, 574 N.W.2d 261, 268 

(Iowa 1997), overruled on other grounds by State v. Palmer, 791 N.W.2d 840 (Iowa 

2010). The jail employee authenticated the letter and his testimony about the letter 

was not hearsay. See Iowa R. Evid. 5.801(d)(2)(A). Further, Swan’s trial counsel 

testified during the PCR hearing that he wanted to deemphasize the letter and did 

not want the letter admitted into evidence because it contained other information 

that would have damaged Swan’s case. We find this to be a reasonable trial tactic 

given the circumstances and therefore conclude Swan’s trial counsel did not 

neglect to perform an essential duty. 

Swan next argues that trial counsel was ineffective for a “concession of 

guilt” issue, contending that counsel should not have put forth a diminished 

capacity defense after forwarding a general denial of any participation in the crime. 

He claims the diminished capacity defense resulted in a tacit admission of guilt in 
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the crime without his consent. Swan provides no authority for this argument nor 

identifies where in the record, which is extensive, this alleged error occurred. We 

will not speculate on Swan’s argument nor will we “search for legal authority and 

comb the record for facts to support such arguments.” Hyler v. Garner, 548 N.W.2d 

864, 876 (Iowa 1996). We deem this argument waived. See Iowa R. App. 

6.903(2)(g)(3).

Swan finally contends the prosecutor at the criminal trial made several 

misleading or false statements during her closing arguments and his trial counsel 

failed to object. He specifically claims counsel failed to object to the prosecutor’s 

statements mischaracterizing evidence regarding Swan’s jailhouse letter, Swan’s 

intent to “go out in a blaze of glory” when buying ammunition after the robbery, and 

misstating the degree of a DNA match.

In “closing arguments, counsel is allowed some latitude. Counsel may draw 

conclusions and argue permissible inferences which reasonably flow from the 

evidence presented.” State v. Carey, 709 N.W.2d 547, 554 (Iowa 2006) (quoting 

State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993)). “However, counsel has no 

right to create evidence or to misstate the facts.” Id. (quoting State v. Greene, 592 

N.W.2d 24, 32 (Iowa 1999)). As to the references to the letter, while the prosecutor 

did not quote the testimony about the jailhouse letter verbatim, we do not find she

misstated the evidence. Further, Swan’s trial counsel testified that he did not want 

to focus or put extra emphasis on the contents of the letter. He made arguments 

during his closing in reference to the letter, attempting to question the validity of 

the letter and downplaying its significance. Objecting to a misquote could have 

given the letter more emphasis and credence to the jury. As to the references to 
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Swan’s intent, there was testimony from witnesses that Swan stated he wanted to 

use the gun if he were caught by police. We find the prosecutor’s statements were 

permissible conclusions and inferences considering the evidence presented. In 

reference to the DNA misstatement, the State concedes that during closing 

arguments, the prosecutor incorrectly stated a higher level of a DNA match than 

was testified to. However, following the prosecution’s closing arguments, Swan’s 

trial attorney made his closing argument, at which time he identified the levels of 

DNA matches in the case as testified to by witnesses, plainly correcting the 

prosecutor’s mistake to the jury. Further, the court instructed the jury that 

arguments of counsel were not evidence and could not be considered as a basis 

for their verdict. Appellate courts “presume juries follow the court’s instructions.” 

State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010). Therefore, Swan suffered no 

prejudice. We find Swan’s trial counsel was not ineffective.

IV. Conclusion

We find the trial court substantially complied with Iowa Code section 822.7, 

Swan’s mandatory minimum sentence does not amount to cruel and unusual 

punishment, and Swan’s claims of ineffective assistance of counsel fail. We affirm 

the PCR court’s denial of Swan’s PCR application.

AFFIRMED.