IN THE COURT OF APPEALS OF IOWA
No. 14-1494
Filed November 12, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY L. STEWART,
Defendant-Appellant.
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Appeal from the Iowa District Court for Des Moines County, John G. Linn,
Judge.
Gary Stewart appeals his judgment and sentence for second-degree theft
as a habitual offender. AFFIRMED.
Mark C. Smith, State Appellate Defender, Martha Lucey, Assistant
Appellate Defender, and Austin Muow, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Bower, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VAITHESWARAN, Presiding Judge.
Gary Stewart appeals his judgment and sentence for second-degree theft
as a habitual offender in connection with the removal and sale of rail roadties.
Second-degree theft requires the value of the property to be more than $1000
and not more than $10,000. Stewart asserts his trial attorney was ineffective in
failing to argue the insufficiency of the State’s evidence of value.
“A claim of ineffective assistance of trial counsel based on the failure of
counsel to raise a claim of insufficient evidence to support a conviction is a
matter that normally can be decided on direct appeal.” State v. Truesdell, 679
N.W.2d 611, 616 (Iowa 2004). That is the case here. Stewart must show
counsel (1) failed to perform an essential duty and (2) prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687 (1984). If the record reveals
substantial evidence to support the contested fact, counsel’s failure to raise the
claim of error could not be prejudicial. See id.
Although Stewart did not challenge the State’s proof of the stolen items’
value, the district court considered the State’s evidence of value in ruling on
Stewart’s motion for judgment of acquittal. The court stated:
I also did some quick math, and it would appear that the
replacement value of this steel exceeded $10,000, and the Court
concludes there’s enough evidence in the record to let the jury
make the final decision, so the Motion for Judgment of Acquittal will
be denied.
The court’s statement is supported by extensive record evidence, including
testimony that the railway lost “approximately 120” special angle bars, which sold
for between $165 to $215 each. The railway also lost “between 50 and 60”
straight bars, which sold for $76 each. This evidence alone supports the finding
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that Stewart took “[p]roperty valued at more than $1000 but not more than
$10,000.” Because the district court’s finding is supported by substantial
evidence, counsel’s failure to raise the claim of error was not prejudicial. See
Truesdell, 679 N.W.2d at 616.
Stewart also raises several pro se claims. None were considered by the
district court. Accordingly, they were not preserved for our review. However,
Stewart raises one of them under an ineffective-assistance-of-counsel rubric,
which is an exception to the error preservation doctrine. See State v. Fountain,
786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are
an exception to the traditional error-preservation rules.”). He asserts his vehicle,
cell phone, and personal navigation system were initially taken from him without
a warrant and warrants for the three items were not sought and obtained until a
day or two later. In his view, his attorney “should have filed a motion to suppress
evidence.” We find the record adequate to address this claim.
The minutes of testimony reveal that Stewart was placed under arrest and
his vehicle was impounded.1 The vehicle was searched only after the officer
applied for and obtained a search warrant the following day. On his search, he
discovered two cell phones and a GPS system. These items were not included
in the original warrant. The officer returned and presented a revised search
warrant application that included them. The items were seized only after the
revised warrant was approved. All three were subsequently searched, again
pursuant to warrants.
1
Stewart does not challenge the basis for impoundment.
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On our de novo review, we conclude there is no reasonable probability an
attorney would have prevailed had the attorney filed a motion to suppress the
evidence based on the officer’s failure to obtain a warrant before impounding the
vehicle, where the vehicle was not searched prior to obtaining a warrant and no
item was seized from the vehicle or searched without a warrant. Accordingly,
this ineffective-assistance-of-counsel claim fails.
We affirm Stewart’s judgment and sentence for second-degree theft.
AFFIRMED.