IN THE COURT OF APPEALS OF IOWA
No. 16-1514
Filed August 16, 2017
NICHOLAS JAMES OLIVER HEBDON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Clinton County, Stuart P. Werling,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, Presiding Judge.
Nicholas Hebdon appeals the district court’s denial of his application for
postconviction relief (PCR). In September 2010, Hebdon entered guilty pleas to
intimidation with a dangerous weapon and conspiracy to commit murder. He was
sentenced to two, ten-year terms of incarceration, to be served consecutively.
He did not file a direct appeal of his convictions, but in September 2013, he filed
an application for postconviction relief. After hearing testimony from Hebdon,
Hebdon’s sister, and Hebdon’s trial counsel, the district court denied the
application. Hebdon asserts the district court incorrectly denied his claim that his
trial counsel was ineffective in failing to adequately advise him of the diminished
responsibility and insanity defenses, and because of counsel’s failure, he could
not make an informed decision regarding whether to plead guilty.
We review de novo a claim of ineffective assistance of counsel. Castro v.
State, 795 N.W.2d 789, 792 (Iowa 2011). We “make an independent evaluation
of the totality of the circumstances as shown in the entire record.” State v.
Turner, 630 N.W.2d 601, 606 (Iowa 2001) (citation omitted). “In conducting our
de novo review, ‘we give weight to the lower court’s findings concerning witness
credibility.’” King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (citation omitted).
The deference is due to the district court’s firsthand opportunity to observe the
witnesses testifying. Turner, 630 N.W.2d at 606.
To prove trial counsel was ineffective, Hebdon has to show by a
preponderance of the evidence (1) counsel failed to perform an essential duty
and (2) counsel’s failure resulted in prejudice. See Lado v. State, 804 N.W.2d
248, 251 (Iowa 2011). “An attorney breaches an essential duty when ‘counsel’s
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representation [falls] below an objective standard of reasonableness.’” Id.
(alteration in original) (citation omitted). When a defendant pleads guilty, in order
to prove prejudice, he must show “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” State v. Straw, 709 N.W.2d 128, 136 (Iowa 2006) (citation
omitted).
At the PCR trial, Hebdon insisted he never saw the experts’ psychiatric
reports or discussed the insanity defense or diminished responsibility defense
with trial counsel. Yet he also testified his recollection of the events leading up to
and including the plea and sentencing hearing was “blurry” due to his mental
health condition and medications, and he acknowledged his recollection of the
discussions he had with counsel may not be complete. While trial counsel did
not have a recollection of the specifics of his representation of Hebdon, he did
testify he has a policy of always giving all discovery, including expert reports, to
all clients unless a client specifically asks not to have it in their possession. In
addition, he testified he typically discusses plea offers with clients, including the
available defenses and potential punishment if the client decides to go to trial, but
he lets the clients make the ultimate decision regarding whether to take the plea
offer and there is no incentive for him to get a client to plead guilty.
After listening to the testimony, the PCR court found that Hebdon’s and his
sister’s testimony were less credible than trial counsel’s testimony. The court
found Hebdon and his sister’s testimony inconsistent and conflicting, while
finding counsel’s testimony consistent. In its ruling, the district court credited the
testimony of Hebdon’s trial counsel, finding the attorney “did inform Hebdon of
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his rights to assert diminished capacity or insanity as a defense at trial and that
Hebdon opted to avoid trial and accept the plea as offered.” The court further
found the attorney “made reasonable inquiry into [Hebdon’s] mental health status
and upon receiving the [forensic psychiatric examination reports from the
defense expert and the State’s expert], allowed [Hebdon] to make the
determination whether or not to proceed to trial.” The court concluded:
It is clear from [the attorney’s] testimony he explained the
differences in the terms of incarceration facing his client if he went
to trial and was convicted versus the term of incarceration if he took
the plea offer. In addition, he explained the weaknesses of his
defenses and, based on his years of experience, his opinion as to
the likelihood that the jury would accept the defenses. Based on
this information, it was Hebdon’s wise choice to accept the plea.
The Court finds [the attorney] was not ineffective based upon
the entire record and totality of the circumstances because his
performance was within the range of normal competency.
Upon our de novo review of the record, giving deference to the district
court’s credibility decision, we agree Hebdon has failed to prove counsel failed to
perform an essential duty. His ineffective-assistance claim thereby fails. We
affirm the decision of the district court.
AFFIRMED.