IN THE COURT OF APPEALS OF IOWA
No. 19-0716
Filed May 13, 2020
JAMES HOLS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Shawn Showers,
Judge.
James Hols appeals the denial of his application for postconviction relief.
AFFIRMED.
Ryan J. Mitchell of Orsborn, Mitchell, Goedken & Larson, P.C., Ottumwa,
for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.
In 2010, a jury found James Hols guilty of domestic abuse assault. Because
it was Hols’s third conviction for such an offense, the charge was enhanced to a
class “D” felony. See Iowa Code § 708.2A(4) (2010). Also, since Hols had two
prior felony convictions, Hols was subject to sentencing enhancements as a
habitual offender. Id. §§ 902.8, 902.9(3). In addition to the domestic abuse assault
charge, Hols was also charged with willful injury causing bodily injury, a class “D”
felony. Id. § 708.4(2). The jury found Hols guilty of the lesser-included offense of
assault causing bodily injury, a serious misdemeanor. Id. § 708.2(2). The
sentencing court merged the charge of assault causing bodily injury with the
sentence for domestic abuse assault and entered no separate sentence for the
assault causing bodily injury charge.1 Hols was sentenced to an indeterminate
term of incarceration not to exceed fifteen years with a minimum sentence of three
years. In a direct appeal raising issues unrelated to the issues in this case, Hols’s
conviction was affirmed. State v. Hols, No. 10-1841, 2013 WL 750307, at *3 (Iowa
Ct. App. Feb. 27, 2013).
Hols initiated these postconviction-relief (PCR) proceedings claiming
ineffective assistance of counsel. Following a trial on the merits, the district court
denied Hols’s application. Hols appeals.
1 Although the charge of assault causing bodily injury includes an element that
domestic abuse assault does not, specifically the element of bodily injury, the State
did not seek review of the sentencing court's decision to merge the two offenses.
Therefore, we do not address any issue pertaining to merger.
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I. Standard of Review and Legal Standards.
“Generally, an appeal from a denial of an application for postconviction relief
is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750
(Iowa 2016) (citation omitted). However, because ineffective-assistance-of-
counsel claims are based on the constitutional guarantees of the effective
assistance of counsel found in the Sixth Amendment of the U.S. Constitution and
article I, section 10 of the Iowa Constitution, such claims are reviewed de novo.
Id.
To prevail on a claim of ineffective assistance of counsel, Hols must make
two showings: (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). “[Hols] has the burden of proof to establish by a preponderance of the
evidence that counsel rendered ineffective assistance.” State v. Aldape, 307
N.W.2d 32, 42 (Iowa 1981).
A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation omitted). “[Hols] must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. “The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to
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dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Id. at 697.
“Courts should strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal justice system suffers as
a result.” Id.
II. Discussion.
Hols claims his trial counsel was ineffective in the following ways:
(1) failing to depose opposing witnesses;
(2) eliciting testimony from the complaining witness that Hols is a sex
offender and not requesting a curative instruction or a mistrial;
(3) asking open-ended questions on cross-examination of the
complaining witness that resulted in her repeating her allegations;
(4) failing to properly challenge the sufficiency of the evidence in making
a motion for judgment of acquittal on the willful injury charge;
(5) failing to secure the attendance of and call defense witnesses; and
(6) failing to call Hols as a witness.
A. Failing to Depose Witnesses.
Trial counsel deposed the complaining witness but did not depose the
remaining two witnesses disclosed by the State, both of whom were law-
enforcement officers. Hols did not meet his burden to establish either prong of this
claim of ineffectiveness. Trial counsel had the reports prepared by both witnesses
prior to trial. Trial counsel had prior experience with both witnesses and from that
experience believed both witnesses would not stray from their written reports. This
belief turned out to be accurate, as neither witness strayed significantly from the
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details of the reports while testifying. Under these circumstances, trial counsel did
not breach any duty by failing to depose the witnesses and there was no prejudice
to Hols, as there is no reason to believe the outcome of the trial would have been
any different if he had. In fact, other than an unsupported statement that he was
prejudiced, Hols presents no argument or description of how he was prejudiced.
See State v. Tate, 710 N.W.2d 237, 241 (Iowa 2006) (“‘[C]onclusory claims of
prejudice’ are not sufficient to satisfy the prejudice element.” (quoting State v.
Myers, 653 N.W.2d 574, 579 (Iowa 2002)).
B. Sex Offender Testimony.
While Hols’s trial counsel was cross-examining the complaining witness, the
following exchange took place:
Q. Now you said your cousin and his wife . . . have
guardianship of your child? A. Yes.
Q. And why is that? A. Because I was with another guy that
is a registered sex offender, as well as Mr. Hols is.
Hols asserts asking an open-ended question that allowed the witness to
volunteer the sex offender information constituted ineffective assistance of
counsel. He also asserts counsel was ineffective for failing to move to strike the
answer, ask for a curative instruction, or ask for a mistrial. During the PCR trial,
Hols’s trial counsel expressed the opinion that he should have objected or asked
for a curative instruction after the witness blurted out the reference to Hols being
a sex offender. The district court found asking an open-ended question was not a
breach of duty but counsel’s failure to object or ask for a curative instruction was
a breach of duty. However, the district court found a lack of showing of prejudice
as a result of the breach of duty.
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We agree the question itself did not breach any duty. We question the
district court’s conclusion there was a breach of duty by failing to object or ask for
a curative instruction. Trial counsel was never asked if there was a strategic
reason for failing to do so even though there are strategic considerations apparent
from the context. Trial counsel may have wanted to avoid calling further attention
to the stray comment, hoping the volunteered and nonresponsive comment—
which could be perceived by jurors as spiteful—did not shed the complaining
witness in a very favorable light. However, we do not need to decide whether Hols
met his burden to show a breach of duty, as his claim fails on the prejudice prong.
Even if trial counsel objected and received a curative instruction, it would not have
changed the outcome in light of the evidence that Hols admitted to law
enforcement officers to having dragged the complaining witness up the stairs by
her belt or hair and the officers observed corroborating injuries on the victim.
C. Open-Ended Cross-Examination Questions.
Trial counsel’s strategy of asking open-ended questions on cross-
examination to get the complaining witness to repeat her story in the hope of
finding inconsistencies was not a breach of counsel’s duty and was not prejudicial.
Hols did not meet his burden of showing this was an unreasonable trial strategy,
and a reasonable trial strategy does not amount to ineffective assistance of
counsel merely because it was unsuccessful. See Osborn v. State, 573 N.W.2d
917, 922 (Iowa 1998) (“Improvident trial strategy, miscalculated tactics, or
mistakes in judgment do not necessarily amount to ineffective assistance of
counsel. The petitioner must overcome a strong presumption of counsel’s
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competence, and a postconviction applicant has the burden to prove by a
preponderance of the evidence that counsel was ineffective.” (citations omitted)).
In addition to there being no breach of duty, there was no prejudice. We
echo the district court’s comments on this issue:
[T]he result would not have changed had trial counsel conducted
brilliant cross[-]examination that would bring a tear to Professor
Younger’s eye.2 When a criminal defendant tells law enforcement
that he drug another individual up the stairs, the assault conviction
becomes a virtual certainty.
D. Challenge to Sufficiency of Evidence.
Hols asserts trial counsel was ineffective for failing to specifically challenge
the sufficiency of the evidence supporting the “intent to cause serious injury”
element of the willful injury charge while making a motion for judgment of acquittal. 3
This claim fails for two reasons. First, there was no breach of duty because a
specific motion raising that issue would have been denied given the evidence that
Hols stabbed the complaining witness with a fountain pen. Even though serious
injury did not result, a reasonable juror could have concluded Hols had the intent
to cause serious injury. Second, there was no prejudice because the jury found
Hols not guilty of willful injury, which is the only crime for which intent to cause
serious injury was an element. Since Hols got the same result on that charge as
2 Hols’s PCR counsel submitted as an exhibit an article from a periodical
discussing Professor Irving Younger’s Ten Commandments of Cross-Examination.
The court admitted the article over the State’s objection.
3 Throughout Hols’s brief, reference is made to a motion for directed verdict. We
will assume counsel intended to reference a motion for judgment of acquittal
pursuant to Iowa Rule of Criminal Procedure 2.19(8) rather than its civil
counterpart, a motion for directed verdict.
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he would have achieved had the motion been made and granted, there is, by
definition, no prejudice.
E. Failing to Secure and Call Defense Witnesses.
Hols claims trial counsel was ineffective because he failed to present two
defense witnesses and failed to seek a continuance once one of those witnesses
was unable to be served with a subpoena. We need not address whether trial
counsel breached his duty, as Hols failed to meet his burden to show prejudice.
We note that neither of the two proposed defense witnesses testified at the PCR
trial, so we are left with nothing more than speculation as to what they knew or the
details to which they could have testified at the criminal trial. It is completely
unclear what one of the potential defense witnesses knew, so failure to call that
witness did not prejudice Hols. Hols claims the other witness was at the house
where the assault occurred, heard the argument between Hols and the
complaining witness, may have testified that she did not see any injuries on the
complaining witness after the argument, and may have testified the complaining
witness had the opportunity to report the assault immediately but chose not to.
Even if Hols’s speculation as to the second witness’s testimony was accepted as
accurate, it would not have changed the outcome. Her testimony would have
corroborated the fact there was a dispute and would not have rebutted the fact
Hols admitted to having dragged the complaining witness up the stairs during the
argument. Even if that witness testified that she saw no injuries on the complaining
witness after the altercation, it would not have changed the outcome for Hols, as
injury was only an element of the assault causing bodily injury charge, which had
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no adverse effect on Hols since it was merged into the domestic abuse assault
conviction.
F. Failing to Call Hols as a Witness.
Hols also asserts trial counsel was ineffective for failing to call Hols as a
witness. He further asserts trial counsel was ineffective for failing to file a motion
in limine to limit impeachment of Hols with his criminal history in the event Hols did
testify. Although these claims are of dubious merit on the breach prong, we need
not decide whether they constituted a breach of trial counsel’s duty, as Hols fails
on the prejudice prong. Conspicuously absent from Hols’s testimony at the PCR
trial was any information as to what Hols would have testified to or how his
testimony would have helped his case. Given Hols admitted to law enforcement
he dragged the complaining witness up the stairs coupled with him providing no
information as to how his testimony would have challenged the State’s evidence,
Hols failed to meet his burden to establish the outcome would have been different
if Hols testified.
III. Conclusion.
Finding no merit to any of Hols’s claims of ineffective assistance of counsel,
we affirm the district court’s dismissal of his PCR application.
AFFIRMED.