IN THE COURT OF APPEALS OF IOWA
No. 18-0082
Filed April 3, 2019
JACOLBY JAPRIEST PENDLETON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi
Wittig, Judge.
Jacolby Pendleton appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Thomas M. McIntee, Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, Judge.
A jury found Jacolby Pendleton guilty of second-degree robbery. The
district court sentenced him to a prison term not exceeding ten years, subject to a
seventy-percent mandatory minimum term. The court of appeals affirmed his
judgment and sentence. State v. Pendleton, No. 13-1647, 2014 WL 6977188, at
*1 (Iowa Ct. App. Dec. 10, 2014).
Pendleton filed a postconviction-relief application, which was denied
following an evidentiary hearing. On appeal, Pendleton (1) challenges the
specificity of the postconviction court’s findings of fact, (2) contends his mandatory
minimum sentence constituted cruel and unusual punishment, and (3) argues his
attorneys were ineffective in several respects.
I. Findings of Fact
Pendleton argues the postconviction court failed to make specific findings
of fact relating to (1) an alternate juror’s observation of him in shackles and the
juror’s transmission of the information to other jurors; (2) his claim that trial counsel
did not adequately advise him of the terms of a plea offer; and (3) his claim that
trial counsel failed to object to hearsay statements made by a police officer.
Pendleton is correct that a postconviction court has an obligation to address
“all the issues raised.” Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006). The
postconviction court did so. On the first issue, the court found:
Trial counsel moved for all appropriate motions including a
motion for mistrial as a result of a juror seeing the applicant in
shackles when the trial broke for lunch. The juror was brought before
the court and the decision was made to release that individual as the
alternate. Once trial counsel found out that the juror has said
something to his fellow jurors about what he saw, the person was
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again brought before the court to testify to what happened in support
of a motion for new trial.
The postconviction court concluded “curative action was taken” by the district
court.
On the second issue—the advice Pendleton received about the terms of a
plea offer—the postconviction court summarized Pendleton’s testimony
concerning his discussions with his trial attorney, then determined Pendleton “may
have had some deficits when it came to knowledge of the law, but understanding
the difference between having to serve 7 years before one can be eligible for parole
versus serving a ‘straight’ 10 with good time credit is not a difficult concept to
grasp.” The court further stated, “Trial counsel explained this to him with as much
clarity as possible. He insisted on going to trial to clear his name. Furthermore,
he did not offer credible evidence that his decision was not knowing and voluntary.”
The final issue—counsel’s claimed failure to object to the officer’s hearsay
testimony about a non-testifying alibi witness—was not raised by Pendleton at the
postconviction-relief hearing. Accordingly, the postconviction court had no reason
to rule on it.
We conclude the postconviction court made fact findings on the issues
raised.
II. Cruel and Unusual Punishment – Mandatory Minimum Sentence
Pendleton argues his mandatory minimum sentence
constitutes cruel and unusual punishment in violation of the State
and Federal Constitutions when applied to him as a youth of 19 years
of age, with no prior adult criminal record, just as the Iowa Supreme
Court in Lyle abrogated mandatory minimum sentences for all
individuals younger than 18 prosecuted as adults because the
mandatory sentence failed to permit the court to consider any
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circumstances based on his attributes of youth or the circumstances
of his conduct in mitigation of punishment.
(citing State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014).
In Lyle, the court held “a mandatory minimum sentencing schema, like the
one contained in Iowa Code section 902.12 (2013), violates article I, section 17 of
the Iowa Constitution when applied in cases involving conduct committed by
youthful offenders.” 854 N.W.2d at 402. But, the court emphasized
our holding today has no application to sentencing laws affecting
adult offenders. Lines are drawn in our law by necessity and are
incorporated into the jurisprudence we have developed to usher the
Iowa Constitution through time. This case does not move any of the
lines that currently exist in the sentencing of adult offenders.
Id. at 403.
Pendleton was an adult offender. Accordingly, Lyle’s holding does not
assist him.
III. Ineffective Assistance of Counsel
Pendleton challenges the performance of his attorneys. To prove an
ineffective-assistance-of-counsel claim, a defendant must show (1) deficient
performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984).
Pendleton contends his trial attorney was ineffective in failing to (1) “object
to admission of testimony regarding [a potential alibi witness]’s alleged hearsay
statements”; (2) “object to statements of [the] prosecutor and police officer
regarding identity of subjects on [a] video, which invaded the fact-finding province
of the jury”; and (3) “challenge [the] mandatory minimum 70% [sentence] as being
unconstitutional under the 8th Am[endment to the United States] Constitution and
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Art. I, Section 17 of the Iowa Constitution.” We preserve the first two claims for a
possible second postconviction-relief action. See State v. Harris, 919 N.W.2d 753,
754 (Iowa 2018) (“If the development of the ineffective-assistance claim in the
appellate brief was insufficient to allow its consideration, the court of appeals
should not consider the claim, but it should not outright reject it.”). The third claim
was addressed above. Pendleton’s trial attorney did not have the benefit of Lyle,
which post-dated his representation. We conclude he had no obligation to foresee
the holding and argue the same reasoning should apply to adult offenders. See
State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (“We recognize that an
attorney need not be a ‘crystal gazer’ who can predict future changes in
established rules of law in order to provide effective assistance to a criminal
defendant.”). We conclude Pendleton’s attorney was not ineffective in failing to
raise a Lyle-style challenge to the sentence.
Pendleton also argues his appellate attorney on direct appeal failed to raise
the following issues: (1) cruel and unusual punishment in imposition of the
mandatory minimum sentence; (2) failure to grant a mistrial for the dismissed juror;
and (3) failure to object “to hearsay testimony of [a potential alibi witness] by” the
police officer. We addressed the sentencing issue above. Suffice it to say
appellate counsel was not ineffective in failing to raise a Lyle issue. As for the
remaining two claims, the record is inadequate to address them, and we preserve
them for a possible second postconviction-relief action. Harris, 919 N.W.2d at 754.
Lastly, Pendleton contends his postconviction trial attorney was ineffective
in failing to (1) challenge his mandatory minimum sentence and (2) interview,
depose, and call several witnesses. Again, we find the sentencing issue
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unpersuasive for the reasons discussed above. We preserve the remaining claim
for a possible second postconviction-relief action.
We affirm the denial of Pendleton’s postconviction-relief application.
AFFIRMED.