IN THE COURT OF APPEALS OF IOWA
No. 16-0171
Filed June 7, 2017
STACEY JEAN O’HARA,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Stacey Jean O’Hara appeals from the dismissal of her application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
DANILSON, Chief Judge.
Stacey Jean O’Hara appeals from the dismissal of her application for
postconviction relief. As background, pursuant to a plea agreement, O’Hara
agreed to plead guilty to the amended charge of second-degree robbery, third-
degree burglary, lottery ticket theft, and assault on a peace officer. The State
agreed to dismiss a conspiracy-to-commit-a-felony charge and to recommend
that all sentences run concurrently to each other. Pursuant to the plea
agreement, O’Hara acknowledged that she understood that she must serve
seven-tenths of the maximum ten-year sentence on the robbery charge before
she would be eligible for work release or parole.
The court accepted the plea on March 16, 2013. O’Hara requested
immediate sentencing and waived her right to a fifteen-day delay before
sentencing, the use of a presentence investigation report at sentencing, and the
right to file a motion in arrest of judgment. During the plea colloquy, these
exchanges occurred:
THE COURT: Now, you’re charged under Count 2 with
robbery in the first degree and you’re pleading guilty to robbery in
the second degree. Robbery in the second degree is a Class C
felony, which means that the maximum penalty you can be subject
to is to be put into prison for a period not to exceed ten years, fined
at least $1000, but not more than $10,000. There would be a 35
percent surcharge assessed on any fine that’s imposed.
Iowa Code section 702.11 [(2011)] defines robbery in the
second degree as a forcible felony. Under Iowa law because this is
a forcible felony, you cannot be granted a deferred judgment or . . .
have your prison sentence suspended and be placed on supervised
probation. In other words, prison time is mandatory.
Also, Iowa Code section 902.12(5) provides that you cannot
be granted any type of parole or work release until you’ve served
seven-tenths or 70 percent of the maximum term; and because the
maximum term in this case is ten years, that means you would
have to serve at least seven years before release. Do you
understand all of that?
3
[O’HARA]: Yes.
....
THE COURT: Now, because you’re pleading guilty to four
separate crimes, the sentencing judge will have to decide whether
to run those sentences together, which means concurrent, or back
to back or some fashion that several of them follow the other. Do
you understand that as well?
[O’HARA]: Yes.
....
THE COURT: Mr. Ingham [defense counsel], do you know
any defenses your client would have other than general denial?
MR. INGHAM: Yes, Your Honor. Due to Ms. O’Hara’s
history and the information gathered in the investigation of this
case, I explored both diminished capacity and diminished
responsibility defenses. Due to our establishing a psychiatric or
psychological defense, we had Ms. O’Hara evaluated by Dr.
Witherspoon, a forensic psychologist. He had issued two reports,
one about competency to stand trial or diminished health or
diminished responsibility defenses and indicated—a report that
indicated there was insufficient evidence to proceed on either of
those two defenses, even though they are available, in our opinion,
and Mr.—Dr. Witherspoon’s opinion cannot be sustained.[1]
THE COURT: Thank you. Ms. O’Hara, do you have any
reason to disagree with the statement your attorney just made?
[O’HARA]: No.
....
THE COURT: Ms. O’Hara, are you satisfied with the services
of Mr. Ingham as your attorney?
[O’HARA]: Yes.
....
THE COURT: All right. And, Ms. O’Hara, just so I’m
satisfied, I understand that throughout this process, you had some
issues with some substance abuse issues and you are on some
1
Dr. Kirk Witherspoon’s competency report provides in part:
Ms. O’Hara was well oriented for person, place, and time. She
evidenced no hallucinations, delusions, or grossly inappropriate affect.
Her recent and remote memory capacities were intact. Her span of
attention and ability to concentrate were limited. She explained proverbs
concretely. She answered social judgment questions adequately. Her
speech was coherent, generally goal directed, mood congruent, evenly
paced, of normal volume, sufficiently detailed, but concrete. Her
intellectual functioning seemed average.
....
It is recommended that Ms. O’Hara be regarded to possess
adjudicatory competency. She appears not to lack factual and rational
understanding of courtroom participants and procedures, skills to assist
defense counsel, and understanding of case events necessary to
adequately stand trial, enter a plea, and undergo sentencing.
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medication and there have been some questions relating to some
mental health treatment or mental health questions. Despite all of
that, do you feel that you’re understanding what we’re doing here
today and this is in your best interest to go ahead with sentencing?
[O’HARA]: Yes.
THE COURT: Any questions on or any hesitation at all on
your part?
[O’HARA]: No.
MR. INGHAM: I want to emphasize, Ms. O’Hara, I didn’t
suggest this [immediate sentencing] to you?
[O’HARA]: No.
MR. INGHAM: You asked me, and I agreed to explore that
possibility with the Court?
[O’HARA]: Yes.
The court sentenced O’Hara consistent with the plea agreement. O’Hara
did not appeal.
On June 20, 2013, O’Hara filed an application for postconviction relief
(PCR) asserting plea counsel did not contact her treating psychiatrist; he did not
properly advise her and pursue a diminished capacity or responsibility defense in
regards to the specific-intent offenses charged; and he either failed to inform her
that the mandatory seven-year minimum sentence under count 2 could not be
reduced for good time, or affirmatively informed her that it could be so reduced.
She also generally asserted plea counsel should have prevented her from
entering guilty pleas or from going to immediate sentencing after the pleas were
entered, based on her distraught mental state and claimed lack of understanding
of the plea agreement or the rights she was giving up by pleading guilty and
proceeding to immediate sentencing. The State answered and sought summary
disposition. O’Hara resisted the motion.2 The matter was scheduled for trial.
2
O’Hara’s attorney and substitute attorney were both allowed to withdraw after the
motion for summary dismissal. The record contains no ruling on the motion.
5
On the date of the PCR trial, O’Hara’s counsel asked to leave the record
open because the pharmacies from which O’Hara obtained her prescriptions had
not yet complied with requests for her medication records. The court denied the
request to keep the record open.
At the PCR hearing, O’Hara testified that on the day before the offenses
(which occurred in the early morning hours of November 29, 2012), she had
taken several medications (Xanax, Depakote, Klonopin, Concerta, Prednisone,
Tramadol, and an antibiotic) and she did not remember much of what happened
thereafter. She further testified the Depakote and Concerta prescriptions had
been previously prescribed “mental medicines.” She testified that on the day of
the offenses, she had gone to the doctor
because I was not feeling good and had a broken finger. And the
doctor put me on some prescriptions for my breathing and for my
broken finger and I remember asking the doctor am I going to be
okay taking this with my mental medicines because I was
prescribed some pretty heavy medication through my psychiatrist.
Well, right after I stopped at the doctor I did go to my psychiatrist
and my psychiatrist had added a new prescription for me to go with
it and I said the same thing to my psychiatrist. And they said I
should be okay taking them together.
....
The doctor had prescribed me Prednisone, and Tramadol
and antibiotic, I’m not sure the name of that. And then my
psychiatrist had added Klonopin that day.
Q. So you would have taken all of those medications that
day? A. Yes.
The new prescriptions added that day were Prednisone, Tramadol, Klonopin, and
the antibiotic.
O’Hara testified she had no memory of committing any of the offenses to
which she pled. She stated she was aware that under the plea agreement there
was a mandatory-minimum sentence. O’Hara asserted, however, she believed
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she would be able to shorten that mandatory sentence with good-time credit and
had she known credit would not be available she “would have took it to trial.”
Plea counsel testified that he would have told O’Hara the mandatory-
minimum sentence was seven years, which meant seven years before she would
see the parole board. He also stated, had O’Hara gone to trial, she was facing a
mandatory-minimum sentence of seventeen and one-half years in prison.
Counsel testified he would have explained the difference between an insanity
defense and diminished capacity defense to O’Hara and he did not believe either
would be successful. He also testified he did not have any concerns about
O’Hara’s ability to understand the implications of the pleas and sentencing.
The PCR court rejected the ineffectiveness claims and dismissed the
application. The court’s ruling included a finding defense counsel’s “investigation
and evaluation of the potential defenses related to the applicant’s mental
condition was appropriate, as was his evaluation of the potential risks and
rewards of proceeding to trial or accepting the best plea agreement that he was
able to negotiate under the circumstances presented.”
On appeal, O’Hara focuses her dissatisfaction on PCR counsel. She
argues “her postconviction relief counsel was ineffective for failing to present the
evidence necessary for the court to evaluate the claim that her trial counsel failed
to properly evaluate her mental health condition and potential defenses to the
charges.”
In order to prevail on her claim of ineffective assistance of counsel, O’Hara
must prove PCR counsel’s performance was defective and resulted in prejudice.
See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). To show prejudice, she
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must establish “the deficient performance so prejudiced [her] as to give rise to
the reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” See id.
We review ineffectiveness claims de novo. Ledezma v. State, 626 N.W.2d
134, 141 (Iowa 2001) (noting scope of review).
“When complaining about the adequacy of an attorney’s representation, it
is not enough to simply claim that counsel should have done a better job. The
applicant must state the specific ways in which counsel’s performance was
inadequate and identify how competent representation probably would have
changed the outcome.” Dunbar, 515 N.W.2d at 15 (internal citation omitted).
O’Hara does not identify what evidence could have been presented or
how that might have changed the result of the PCR trial. She specified the
prescriptions she had taken. The record indicates O’Hara specifically asked her
doctor and the psychiatrist if the medications could be taken together—she was
told yes. She acknowledges that she does not “believe” she had consumed
alcohol or recreational drugs that day. O’Hara does not explain how the
pharmacy records would have changed the result. O’Hara has failed to establish
prejudice. Consequently, we affirm the district court’s denial of her PCR
application.
AFFIRMED.