IN THE COURT OF APPEALS OF IOWA

No. 16

- 0171 Filed June 7, 2017

STACEY JEAN O’ HARA , Applicant

- Appellant,

vs.
STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark D. Cleve
, Judge.

Stacey Jean O’Hara appeals from the dismissal of her application for
postconviction relief. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender , for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven , Assistant
Attorney General, for appellee State.

Considered by Danilson, C.J., and Potterfie ld and Bower, JJ.2

DANILSON, Chief Judge.
Stacey Jean O’Hara appeals from the dismissal of her application for
postconviction relief. As background, p ursuant to a plea agre ement, O’ Hara
agreed to plead guilty to the amended charge of second

- degree r obber y , third

degree burglary, lottery ticket theft, and assault on a peace officer. The State
agreed to dismiss a conspiracy

- to

- commit

- a
- felony charge and to recommend

that all sentences run concurrent ly to each other. Pu rsuant to the plea
agreement, O’ Hara acknowledged that she understood that she must serve

seven
- tenths of the maximum ten

- year sentence on the r obbery charge before

she would be eligible for work release or parole.
The court accepted the plea on March 16, 2013. O’Hara requested

immediate se ntencing and waived her right to a fifteen

- day delay before
sentencing, the use of a presentence investigation report at sentencing, and the
right to file a motion in arrest of judgment. During the plea colloquy, th ese
exchange s occurred:

THE COURT: Now, you’ re charged under Count 2 with robb ery in the first degree and you’ re pleading guilty to robbery in the second degree. Robbery in the second degree is a Class C felony, which means that the maximum penalty you can be subject to is to be put into p rison for a period not to exceed ten years, fined at least $1000, but not more than $10,000. There would be a 35 percent surcharge assessed on any fine that ’ s imposed. Iowa Code s ection 702.11 [ (2011) ] defines robbery in the second degree as a forcible f elony. Under Iowa law because this is a forcible felony, you cannot be granted a deferred judgment or

. . . have your prison sentence suspended and be placed on supervised probation. In other words, prison time is mandatory. Also, Iowa Code s ection 902. 12(5) provides that you cannot be granted any type of parole or work release until you’ ve served
seven
- tenths or 70 percent of the maximum term; and because the maximum term in this case is ten years, that means you would have to serve at least seven years before release. Do you understand all of that?3

[O’HARA] : Yes.

. . . . THE COURT: Now, because you ’ re pleading guilty to four separate crimes, the sentencing judge will have to decide whether to run those sentences together, which means concurrent, or back to back or some fashion that several of them follow the other. Do you understand that as well? [O’HARA] : Yes.

. . . . THE COURT : Mr. Ingham [defense counsel], d o you know any defenses your client would have other than general denial? MR. ING H AM : Yes, Your Honor. Due to Ms. O’Hara’s history and the information gathered in the investigation of this case, I explored both diminished capacity and diminished responsibility defenses. Due to our establishing a psychiatric or psychological defense, we had Ms. O’Hara evaluated by Dr. Witherspoon, a forensic psychologist. He had issued two reports, one about competency to stand trial or dimi n ished health or diminished respon sibility defenses and indicated

— a report that indicated there was insufficient ev idence to proceed on either of those two defenses, even though they are available, in our opinion, and Mr.

— Dr. Witherspoon’s opinion cannot be sustained. [ 1 ] THE COURT : Thank you. Ms. O ’ Hara, do you have any reason to disagree with the statement your atto rney just made? [ O’H ARA] : No.

. . . . THE COURT: Ms. O’ Hara, are you satisfied with the services of Mr. Ingham as your attorney? [O’HARA]: Yes.

. . . . THE COURT: All right. And, Ms. O ’ Hara, just so I’ m satisfied, I understand that throughout this process, you had some issues with some substance abuse issues and you are on some

1 Dr. Kirk Witherspoon’s compet ency report provides in part:

Ms. O ’ Hara was well oriented for person, place, and time. She
e videnced no hallucinations, delusions, or grossly inappropriate affect. Her recent and remote memory capacities were intact. Her span of attention and ability to concentrate were limited. She explained proverbs concretely. She answered social judgment questions adequately. Her speech was coherent, generally goal directed, mood congruent, evenly paced, of normal volume, sufficiently detailed, but concrete. He r intellectual functioning seemed average.

. . . . It is recommended that Ms. O’ Hara be regarded to possess adjudicatory competency. She appears not to lack factual and rational understanding of courtroom participants and procedures, skills to assist d efense counsel, and understanding of case events necessary to adequately stand trial, enter a plea, and undergo sentencing.4

medication and there have been some questions relating to some mental health treatment or mental health questions. Despite all of that, do you feel that you ’ re understandin g what we ’ re doing here today and this is in your best interest to go ahead with sentencing? [O’HARA] : Yes. THE COURT: Any questions on or any hesitation at all on your part? [O’HARA]: No. MR. ING HAM: I want to emphasize, Ms. O’ Hara, I didn ’ t suggest t his [immediate sentencing] to you? [O’HARA]: No. MR. INGHAM: You asked me, and I agreed to explore that possibility with the Court? [O’HARA]: Yes.
The court sentenced O’Hara consistent with the plea agreement

. O’Hara
did not appeal.

On June 20, 2013, O’Hara filed an application for postconviction relief
(PCR) asserting plea counsel did not contact her treating psychiatrist ; he did not
properly advise her and pursue a diminished capacity or responsibility defense in
regards to the spec ific

- intent offenses charged ; and he either failed to inform her
that the mandatory sev en
- year minimum sentence under c ount 2 could not be
reduced for good time
, or affirmatively informed her that it could be so reduced.
She also generally a sserted plea c ounsel should have prevented her from
entering guilty pleas or from going to immediate sentencing after the pleas were
entered, based on her distraught mental state and claimed lack of understanding
of the plea agreement or the rights she was giving up by pleading guilty and
proceeding to immediate sentencing. The State answered and sought summary
disposition. O’Hara resisted the motion

. 2 T he matter was scheduled for trial.

2 O’Hara’s attorney and substitute attorney were both allowed to withdraw after the motion for summary dismissal. The record contains n o ruling on the motion.5

On the date of the PCR trial, O’Hara’s counsel asked to leave the record

open because the pharmacies from which O’Hara obtained her prescriptions had
not yet complied with requests for her medication records. The court denied the
request to keep the record open.
At the PCR hearing, O’Hara testified that on the day before the off ense s
(which occurred in the early morning hours of November 29, 2012), she had
taken several medications (Xanax, Depakote, Klonopin, Concerta, Prednisone,
Tramadol, and an antibiotic) and she did not remember much of what happened

thereafter. She further testified the Depakote and Concerta prescriptions had
been previously prescribed “mental medicines.” She testified that on the day of
the offenses, she had gone to the doctor
because I was not feeling good and had a broken finger. And the doctor put me on some prescriptions for my breathing and for my broken finger and I remember asking the doctor am I going to be okay taking this with my mental medicines because I was prescribed some pretty heavy medication through my psychiatrist. Well, right after I stopp ed at the doctor I did go to my psychiatrist and my psychiatrist had added a new prescription for me to go with it and I said the same thing to my psychiatrist. And they said I should be okay taking them together.

. . . . The doctor had prescribed me Prednisone, and Tramadol and antibiotic, I’m not sure the name of that. And then my psychiatrist had added Klonopin that day. Q. So you would have taken all of those medications that day? A. Yes.
The new prescriptions added that day were Prednisone, Tramadol, Klonopin, and

the antibiotic.

O’Hara testified she had no memory of committing any of the offenses to
which she pled. She stated she was aware that under the plea agreement there

was a man datory

- minimum sentence. O’Hara asserted
, however
, she believed6

she would be able to shorten that mandatory sentence with good

- ti me credit and

had she known credit would not be available she “would have took it to trial.”

Plea counsel testified that he would have told O’Hara the mandatory

minimum sentence was seven years , which meant seven years before she would
see the parole board. He also stated
, had O’Hara gone to trial, she was facing a
mandatory

- minimum sentence of seventeen and one

- half years in prison

. Counsel testified he would have explained the difference between an insanity
defense and diminished capacity defense to O’Hara and he did not believe either

would be successful . He also testified he did not have any concerns about

O’Hara’s abi lity to understand the implications of the pleas and sentencing.

T he PCR court rejected the ineffectiveness claims and dismissed the
application. The court’s ruling included a finding defense counsel’s “investigation
and evaluation of the potential de fenses related to the a pplicant’s mental
condition was appropriate , as was his evaluation of the potential risks and
rewards of proceeding to trial or accepting the best plea agreement that he was
able to negotiate under the circumstances presented .”

On a ppeal, O’Hara focuses her dissatisfaction on PCR counsel. She
argues “her postconviction relief counsel was ineffective for failing to present the
evidence necessary for the co urt to evaluate the claim that her trial counsel failed
to properly evaluate he r mental health condition and potential defenses to the
charges.”
In order to prevail on her claim of ineffective assistance of counsel, O’Hara
must prove PCR counsel’s performance was defective and resulted in prejudice.

See Dunbar v. State , 515 N.W.2 d 12, 15 (Iowa 1994). To show prejudice, she7

must establish “the deficient performance so prejudiced [her] as to give rise to
the reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” See i d.

We review ineffectiveness claims de novo. Ledezma v. State , 626 N.W.2d
134, 141 (Iowa 2001) (noting scope of review).

“ When complaining about the adequacy of an attorney ’ s representation, it
is not enough to simply claim that counsel should have done a b etter job. The
applicant must state the specific ways in which counsel’ s performance was
inadequate and identify how competent representation probably would have
changed the outcome. ” Dunbar , 515 N.W.2d at 15 (internal citation omitted).

O’Hara does no t identify what evidence could have been presented or
how that might have changed the result of the PCR trial . She specified the
prescriptions she had taken

. The record indicates O’Hara specifically asked her
doctor and the psychiatrist if the medications could be taken together

— she was
told yes. She acknowledges that she does not “believe” she had consumed
alcohol or recreational drugs that day. O’Hara does not explain how the
pharmacy records would have changed the result. O’Hara ha s failed to establish
prejudice. Consequently, we affirm the district court ’ s denial of h er PCR
application

.
AFFIRMED.