IN THE COURT OF APPEALS OF IOWA
No. 13-1597
Filed September 17, 2014
RAY GENE TRIPLETT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers,
Judge.
Ray Triplett appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Thomas J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Michael J. Walton, County Attorney, and Melisa K. Zaehringer,
Assistant County Attorney, for appellee State.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
2
VOGEL, J.
Ray Triplett appeals from the district court’s denial of his application for
postconviction relief. He asserts the court erred in summarily granting the State’s
motion to dismiss because the application presented genuine issues of material
fact. He further claims postconviction counsel was ineffective for failing to amend
his pro se application, for conceding issues raised by the State, and for not
visiting him in prison to discuss his case. Triplett also argues trial counsel was
ineffective for failing to move to exclude his crack cocaine use and for various
statements made during the trial. We conclude the district court properly granted
the State’s motion to dismiss, given there are no genuine issues of material fact
regarding any of Triplett’s claims. We further conclude postconviction counsel
was not ineffective, and because Triplett’s claims of ineffective assistance of trial
counsel were not raised before this appeal, they are waived. We therefore affirm
the district court’s dismissal of his application.
I. Factual and Procedural Background
On August 9, 2011, a jury found Triplett guilty of sexual abuse in the first
degree and assault causing serious injury, in violation of Iowa Code sections
708.2(4) and 709.2 (2011). The convictions stemmed from Triplett’s actions in
the early morning of March 3, 2011. As our court noted when affirming his
convictions, the following events occurred:
[O]n March 2, 2011, [the victim] drove Ray Triplett and
Charles Schwartz around Davenport—helping Schwartz shop for a
vehicle. The trio spent the rest of the day and much of the night at
Triplett’s house drinking beer and using crack cocaine. Triplett
drove Schwartz home around 11:00 p.m. and returned to [the
victim’s] company. Because [the victim] felt too intoxicated to drive,
3
she stayed the night at Triplett’s residence, sleeping in his bed
while he slept in a chair.
At 6:00 a.m. the next morning, [the victim] awoke to Triplett’s
arm around her. She declined his request to have sex and started
to leave. Triplett stopped her by placing a knife to her throat. He
then told her he was “just kidding” and she responded he “wasn’t
very funny.” When [the victim] again tried to leave the house,
Triplett grabbed her and pulled her back. [The victim] testified:
“He told me that he was going to kill me and that he was
going to throw my body in the river. And he began to unbutton his
belt and his pants and pull his pants down, and unbutton my pants
and pull my pants down.
....
He told me to stop fighting him off or he was going to hit me
in the head with a rubber mallet that he had.”
As [the victim] continued to struggle during the sexual
assault, Triplett struck her in the head with a mallet. [The victim’s]
wound began to bleed profusely. Triplett tried to staunch the flow
by pressing a blanket against her forehead. After Triplett ended his
assault, [the victim] fled on foot to the home of her friend Kimberly
Cummins. [The victim] left a trail of blood through Triplett’s
bedroom.
At around 7:00 a.m., Cummins opened the door to find [the
victim], “crying and bloody and scared.” Cummins recalled blood
on [the victim’s] hands and clothes, and “her hair was matted with
it.” Cummins drove her friend to the emergency room. En route,
they drove past Triplett’s house to record the address for the police.
An examination at the hospital revealed [the victim]
sustained bruising and abrasions to much of her body. Her face
was very swollen, and her lips and teeth were tender, which she
attributed to Triplett “smothering [her] with a blanket.” Her most
notable injury was a puncture wound and significant swelling to her
forehead caused by the mallet’s impact. The medical staff sutured
the wound on her forehead. During her eight hours at the hospital,
[the victim] received x-rays and a CT scan of her head. She also
underwent a sex assault examination. A vaginal swab and semen
found on the victim’s underwear both contained Triplett’s DNA.
State v. Triplett, No. 2-738/11-1528, 12 WL 4900468, at *1 (Iowa Ct. App. Oct.
17, 2012).
On June 11, 2013, Triplett filed a pro se application for postconviction
relief, alleging: (1) the victim had consented to the sex act and he did not cause
her injury; (2) counsel was ineffective for not allowing him to confront the victim;
4
and (3) he had not received a fair trial because “the panel” of jurors had been
sexually abused and knew police officers. He also requested counsel to
represent him, which was effected on June 21. The State filed a motion to
dismiss on July 5. Triplett’s attorney was given authority to check out the court
file and allowed travel time and expense to visit Triplett in the penitentiary by
order filed July 13. Triplett’s attorney filed a response to the State’s motion to
dismiss, which was dated August 23, and indicated a copy had been hand
delivered to Triplett. An unreported hearing was held on August 23. On
September 20, 2013, the district court granted the State’s motion to dismiss.
Triplett appeals.
II. Standard of Review
We review rulings on postconviction relief proceedings for correction of
errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). With respect to
ineffective-assistance-of-counsel claims, we review those de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on this claim, the
defendant must show, first, that counsel breached an essential duty, and,
second, that he was prejudiced by counsel’s failure. Id.
III. District Court’s Order
Triplett first asserts the district court erred in granting the State’s motion to
dismiss. He claims there was a genuine issue of material fact regarding the
consensual nature of the sex act, his ineffective-assistance-of-counsel claim with
respect to an opportunity to confront the victim, and his claim he was denied a
fair trial because of the jury selection procedure. Consequently, he asserts, the
5
district court erred by summarily dismissing his application without allowing him
to develop an adequate record.
Pursuant to Iowa Code section 822.6 (2013), “when it appears from the
pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law,” the district court may grant a motion for summary disposition. 1
Additionally, Iowa Code section 822.4 requires the postconviction relief applicant
to specifically set forth the grounds upon which the application is based in the
application itself, which Triplett failed to do. Triplett was also given an
opportunity to expand the record in both his reply to the State’s motion and
during the hearing that was held, which he also failed to do. Given the statutory
requirements and the proceedings that took place, the court used the proper
procedure when dismissing Triplett’s application, and therefore did not err by not
allowing Triplett to “find and introduce additional specific grounds.”
The district court also properly dismissed the claims on the merits.
Because our court denied Triplett’s sufficiency-of-the-evidence challenge on
appealand upheld his conviction, Triplett’s claim the victim consented to the sex
act is barred by res judicata. See Holmes v. State, 775 N.W.2d 733, 735 (Iowa
Ct. App. 2009) (holding the decision on direct appeal is binding on the
postconviction court); Triplett, 12 WL 4900468, at *3.
1
While the State labeled its motion as a motion to dismiss, it is clear from the substance
of the motion the State was requesting summary dismissal.
6
Furthermore, Triplett has failed to set forth any facts upon which
postconviction relief could be granted with respect to his other claims. He was
clearly granted the opportunity to confront the victim through cross examination,
and therefore his Sixth Amendment rights were satisfied. Additionally, all jurors
went through voir dire, and it was evident from the record each selected juror
could be impartial and fair, regardless of their own history or knowing someone
who had been sexually abused, or knowing police officers not involved in the
case.2 As the post-conviction court found:
The Iowa Court of Appeals upheld Mr. Triplett’s conviction, finding
that the evidence was sufficient to support a finding of serious
injury. In addition, there is sufficient evidence on the record to
support the jury’s finding that Mr. Triplett’s victim did not consent.
Mr. Triplett’s victim testified and was cross examined at trial and
Mr. Triplett exercised his constitutional right against self-
incrimination on the record. Further, only two of the jurors chosen
in Mr. Triplett’s trial knew police officers and only three knew
someone who had been sexually abused. All of these jurors
indicated during voir dire that their respective experiences would
not affect their decision in Mr. Triplett’s case.
The record supports the court’s conclusions.3 Consequently, Triplett has failed to
set forth any facts upon which relief could be granted, and his claims in this
regard are without merit.
IV. Ineffective Assistance of Postconviction Counsel
Triplett next claims postconviction counsel was ineffective because
counsel failed to amend or substitute his pro se application. He also argues
2
There was only one juror who expressed some hesitation about her ability to be
impartial due to her history of sexual abuse. However, when asked if she could separate
her experience from that of the case being presented, she assured counsel she would
not be prejudiced against Triplett due to her own attack.
3
Though the court stated the number of jurors who had experience with sexual assault
was three—when it was in fact five—this misstated number is not material to the court’s
decision, given that all five jurors expressed their ability to be impartial.
7
counsel was ineffective for failing to visit him in prison and for failing to ensure
Triplett was available for the hearing on the State’s motion to dismiss. Finally, he
asserts counsel breached an essential duty by conceding certain issues during
the hearing, which he frames as a failure to preserve his application and to
enlarge or amend the court’s findings.
None of these arguments serve to prevent any of Triplett’s three claims
from being summarily disposed. As noted above, Triplett’s claims set forth in his
application failed on the merits, and his argument on appeal does not contend
how postconviction counsel could have changed this result.4 Therefore,
postconviction counsel was not ineffective for failing to amend the original
petition. Furthermore, Triplett has failed to set forth any facts showing he was
prejudiced by counsel’s failure to visit him in prison or ensure he was available
for the hearing, given he has no constitutional right to be present at a
postconviction relief hearing. See Myers v. Emke, 476 N.W.2d 84, 85 (Iowa
1991) (noting there is no constitutional provision establishing that a prisoner has
the right to attend a civil proceeding). Nor did Triplett show counsel breached an
essential duty when conceding the State’s recitation of the issues in the case,
given the facts and given the fact that the State’s arguments were clearly
supported by the underlying record. Therefore, any objection made by
postconviction counsel would have been without merit. See State v. Greene, 592
N.W.2d 24, 29 (Iowa 1999) (noting counsel has no duty to pursue a meritless
objection). Consequently, Triplett has failed to meet his burden of showing relief
4
Although in the next section Triplett asserts trial counsel was ineffective, he does not
assert postconviction counsel was ineffective for failing to raise additional claims.
8
should be granted. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (stating
it is the defendant’s burden to show both prongs by a preponderance of the
evidence).
V. Ineffective Assistance of Trial Counsel
Triplett’s final argument asserts that trial counsel was ineffective because
counsel: (1) failed to file a motion to exclude evidence of Triplett’s use of crack
cocaine; (2) failed to move to exclude statements regarding Triplett’s prior acts of
non-consensual sex; (3) made prejudicial statements during closing arguments;
(4) failed to exclude testimony that Triplett raped the victim; and (5) made
prejudicial statements regarding the consumption of alcohol.
The claims Triplett now asserts were not raised in either his direct appeal
or in his application for postconviction relief, nor were they ruled on by the district
court. Unless the defendant can show sufficient reasons for failing to raise these
claims earlier, they are waived. Nguyen v. State, 707 N.W.2d 317, 323 (Iowa
2005). Alternatively, the defendant can allege postconviction counsel was
ineffective for failing to raise these claims, and set forth specific ways the
defendant was prejudiced by this failure. Rivers v. State, 615 N.W.2d 688, 689–
90 (Iowa 2000). Triplett has not set forth any reasons why these claims were not
presented in a prior proceeding, nor has he alleged postconviction counsel was
ineffective for failing to raise these claims below. Consequently, Triplett has
waived these claims on appeal, and we decline to address the merits.
Having reviewed Triplett’s claims, we affirm the district court’s dismissal of
his application for postconviction relief.
AFFIRMED.