IN THE COURT OF APPEALS OF IOWA
No. 19

- 1966 Filed December 16, 2020

KENNETH OSBORNE ARY , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, Heather Lauber , Judge. The applicant appeals the denial of his application for postconviction relief.
AFFIRMED.

Kevin Hobbs , West D es Moines , for appellant. Thomas J. Miller, Attorney General, and Israel Kodiaga , Assistant Attorney General, for appellee State.

Considered by Doyle, P.J. , and Mullins and Greer, JJ.2

GREER , Judge

. Kenneth Osborne Ary appeals the denial of his application for postconviction relief ( PCR )

. He claims he received ineffective assistance from trial counsel in two ways: (1) trial counsel missed the deadline to submit discovery requests and conduct depositions, which impaired his ability to impeach the State’s star witness and (2) trial counsel was ineffective in handling jury voir dire, depriving Ary of his right to a fair and impartial jury. Facts and Earlier Proceedings

. I n 2013, A ry was charged with three counts of deli very of a controlled substance (crack cocaine). Following a jury trial in June 2014, he was found guilty on all three counts and sentenced to three consecutive twenty

- one - year prison
terms. 1 He appealed seeking a new trial, alleging (1) trial counsel pro vided ineffective assistance by missing the deadline for filing a discovery request ; (2) the jury pool was tainted by statements made by a prospective juror during voir dire, violating his right to a fair and impartial jury ; and (3) there was insufficient evidence to support the convictions . This court found Ary’s right to an impartial jury was violated, and we reversed and remanded for a new trial. See State v. Ary , No. 14

- 1112, 2015 WL 4935612 at *9

– 10 (Iowa Ct. App. Aug. 19, 2015) . After granting the State’s application for further review, the Iowa Supreme Court reversed the court of appeals, finding the prospective juror’s statements during voir dire did not violate Ary’s right to a fair and impartial jury. State v. Ary , 877 N.W.2d 68 6, 703 (Iow a 2016). However , on the ineffective

- assistance

- of

- counsel claim , the court

1 Ary stipulated to his status as a second or subsequent offender and habitual offender ; his sentence was enhanced accordingly.3

found “Ary demonstrated his trial counsel failed to perform an essential duty” in missing the deadline to file notice of intent to take depositions and seek discovery.
Id. at 705

. But the court concluded “ the record [was] inadequate to assess whether prejudice resulted from trial counsel’s breach of an essential duty” and did not reach the merits on the ineffective

- assistance claim. Id. In August 2016, A ry filed a PCR applicati on pro se . Ary’s application was amended in December 2016 after he obtained counsel. In his application, A ry made essentially the same claims he now raises on appeal

— that he was denied effective assistance when trial counsel missed the deadline to file d iscovery
req uests and take depositions and trial counsel ’s fail ure to properly conduct voir
dire violat ed Ary’s right to a fair and impartial jur y. The PCR court specifically
addressed and denied Ary’s ineffective

- assistance claim as to t rial counsel’s failure
to conduct discovery . In its November 2019 ruling, the PCR court detailed the relevant facts and its thoughtful analysis as follows : On March 11, 2014, [Ary’s] then counsel , [ 2 ]

. . . filed a [m] otion to [p] roduce and a motion for le ave to take depositions after the expiration of the established deadline. The court held a hearing on counsel’s motions on April 22, 2014. Ary was represented by [trial counsel] at the April 22nd hearing. [Trial counsel] would remain Ary’s counsel at al l times material to this po stconviction relief action. The court granted the pending motions and gave counsel until April 29, 2014, to file a notice of any additional depositions or discovery Ary intended to complete prior to tri al. [Trial counsel] did not file the notice of additional discovery with the cou rt until April 30, 2014. On May 14, 2014, [trial counsel] filed a motion asking the court to clarify the status of discovery and depositions. On May 23, 2014, the court entered an order, refusing to extend any deadlines to allow additional discovery, including depositions. The court’s order was premised upon [trial counsel ’s ] failure to timely file the discov ery notice prior to the court’s imposed deadline.

2 Ary’s then counsel took other employment and withdrew. Trial counsel appeared in Ary’s defense for the first time on April 22.4

. . . . Ary claims his trial counsel wa s ineffective by failing to depose the confidential informant [ ( CI ) ]

. . . .

. . . . Ary’s defense at trial, in his direct appeal, and in this postconviction relief action centers on [CI ’s ] credibility. Relevant to this postconviction relief action, Ary claims that counsel failed to adequately challenge [ CI ’s ] credibility. If counsel had deposed [CI] prior to trial, Ary asserts counsel’s cross

- examination would have been more effective, and the trial result different. Here, the Iowa Supreme Court has already concluded that counsel breached an essential duty by failing to give timely notice of his intent to take depositions

. The only remaining inquiry for this court is whether counsel’s failure to notice and take depositions resulted in prejudice to Ary. Ary, as the party making a claim of ineffective a ssistance of counsel, must show prejudice resul ting from counsel’s conduct.

. . . Ary cannot show prejudice. The evidence presented to the court was sufficient to support a finding o f guilt beyond a reasonable doubt; there is nothing to suggest a jury would have found differently if [CI] had been deposed pre

- trial. The State offered the testimony of the officers involve d in the three controlled buys. These officers testified consist ently, and in detail, about their training, education and experience with drug transactions, including th e three at issue in Ary’s case. [CI] also testified about the circumstances surrounding the three controlled buys. Although [CI] had a slightly diffe rent recollection than the officers about some of those circumstances, including the amount of money he was paid for his work as a confidential informant, and exactly where the officers’ search es of his car occurred, [CI ’s ] testimony was consistent with the officers’ testimony on the salient points

. Additionally, [trial counsel ’s ] cross - examination of [CI] was effectiv e. He was not a credible witness. [Trial counsel] testified that [CI] appeared to be high, was combative, slurred his words, and provide d inconsistent test imony during cross

- examination. [Trial counsel] zealously cross

- examined [CI] , capitalizing on each of [CI ’s ] inconsistent statements. During cross

- examination and closing arguments, [trial counsel] highlighted those inconsi stencies an d evasive behaviors. Despite this, Ary contends that had [trial counsel] confronted [CI] with a 1995 Johnson County forgery conviction and a 2013 Polk County theft conviction, the jury would have rejected [ CI ’s ] entire testimony. The record does not support this conclusion. [Trial counsel] pointed out multiple times [CI] had been charged and con victed of crimes of dishonesty. It was for the jury to determine if [CI ’s ] denials that those convictions were legitimate or that they belonged to him were c redible. The jury either rejected those denials or found his prior convictions were not relevant to h is actions in the5
pending case. [Trial counsel] also cross

- examined [CI] and the officers about the thoroughness of the officers’ searches and their surv eillance techniques. Bringing to the jury’s attention that officers were working [CI] even though he had a pending theft case would have added little to [trial counsel ’s ] argument the police were not thorough. Finally, in addition to the officers’ testi mony, and the portions of [CI ’s ] testimony that was corroborated by officers, the State also produced Ary’s own admissions. The jury heard that Ary himself admitted he was selling crack cocaine during the tim e period at issue in this case. Deposin g [CI] would have done nothing to mitigate or prevent these admissions from becomi ng evidence. In sum, Ary simply cannot mee t his burden to show prejudice. As to Ary’s second claim, that trial counsel was ineffective in conducting voir dire, the PCR court co nsidered this claim withdrawn. “Trial counsel did not raise this ground during trial, and other than a passing assertion that [trial counsel’s] failure to conduct discovery combined with [trial counsel’s] performance during jury
selection warrants a new t rial, it was not discussed in Ary’s post

- trial briefing.”
Error Preservation

. Ary failed to mention how he preserved error on the two issues he raises. The State does not dispute that error was preserved on Ary’s first ground for ineffective assistance of counsel, relating to trial counsel’s failure to conduct discovery. Error was preserved on this issue. However, the State argues that error was not preserved on Ary’s second ground for ineffective assistance

— t he jury

- selection claim

. T he court noted it
consider ed the claim withdrawn , but it also ruled on the issue in the alternative, concluding Ary’s ineffective

- assistance claim on the jury

- selection ground failed

.

“ If the court ’ s ruling indicates that the co urt considered the issue and necessarily ruled on it, even if the court ’ s reasoning is ‘ incomplete or sparse, ’ the issue has been preserved. ” Lamasters v. State , 821 N.W.2d 856, 864 (Iowa 2012) ( citing6

Meier v. Senecaut

, 641 N.W.2d 532, 540 (Iowa 2002) )

. This is not a case where the issue was “not considered by” the PCR court. See i d. Because the PCR court addressed the issue and ruled on it, we consider the issue preserved for appeal. Standard of Review

. We review claims of ineffective assistance o f counsel de novo. Ledzema v. State , 626 N.W.2d 134, 141 (Iowa 2001). Analysis. “In order to succeed on a claim of ineffective assistance of counsel, [ an applicant ] must prove: (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)). To show prejudice, “the applicant must demonstrate ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Ledzema , 626 N.W.2d at 143 (quoting Strickland , 466 U.S. at 694) . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland

, 466 U.S. at 69 4

. We address Ary’s PCR claims in reverse
order. Jury

- Selection Failures. In the PCR trial, Ary failed to offer any evidence or argument a s to how his trial counsel was ineffective in handling the juror bias concerns during jury selection. The PCR court no ted this omission from both Ary’s PCR presentation
and his post

- trial brief, then stated , “ [T] he court considers Ary’s ineffective assistance of counsel claims with respect to voir dire to be withdrawn. ” The district
court also referenced the Iowa S upreme C ourt ’s finding that additional record was7

required to determine whether counsel was ineffective in jury selection. See Ary , 877 N.W.2d at 701

– 02. Without that record, the PCR court determined the jury

selection claim must be denied. With no testimony o n the subject developed at the PCR hearing , we cannot resolve the question. Ary did not meet his burden to prove ineffective assistance of counsel related to the jury

- selection allegations. Discovery Failure. As we noted above, the s upreme c ourt established that trial counsel failed to perform an essential duty by missing the discovery deadline. Id. at 705. Thus, our inquiry addresses whether Ary was prejudiced by this failure. Because we agree with the PCR court’s thoughtful analysis, we affir m the denial of PCR

. After reviewing the record, we find Ary failed to prove by a preponderance of the evidence that there was a reasonable probability the result would have been different but for trial counsel’s failures. See Strickland , 466 U.S. at 6 94

. W hile failing to conduct a deposition of the CI may have hampered a full cross examination of this witness, trial counsel did capitalize on the CI ’s general lack of credibility and raised some of his prior convictions during cross

- examination. Trial

co unsel described the CI as appearing “high” and “slurring words” during the testimony. Pushing the CI during cross

- examination, trial counsel believed the testimony came across as inconsistent, evasive , and combative. While Ary maintains a deposition of t he CI might have offered more evidence to impeach the CI, trial counsel used portions of the CI’s criminal record to attack his creditability. But even with a poor trial appearance by the CI, t he jury also heard detailed testimony from several police offi cers who directed and oversaw the CI in his role as a confidential informant buy ing crack cocaine from Ary. Lastly, the re was8

testimony confirming admissions Ary made that he had been selling crack cocaine around the time he was charged with selling to th e CI . All of these facts provided significant evidence pointing to Ary’s guilt, regardless of [CI ’s ] testimony. See State v. Graves , 668 N.W.2d 860, 882

– 83 (Iowa 2003) ( providing that when determining if the prejudice standard has been met, the court considers “ the totality of the evidence, what factual findings would have been affected by counsel ’ s errors, and whether the effect was pervasive or isolated and trivial. ” ). Thus, conside ring all the evidence presented against Ary at trial, we cannot say that the outcome would have been different but for trial counsel’s failure. As such, we affirm the denial of Ary’s PCR application

. AFFIRMED.