Opinion
No. 2-532 / 01-2010.
Filed November 15, 2002.
Appeal from the Iowa District Court for Polk County, GLENN E. PILLE, Judge.
Eric Herndon appeals from the denial of his postconviction relief application. AFFIRMED.
Mary McGee, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Eric Herndon was convicted by a jury of third-degree sexual abuse. This court affirmed his convictions, rejecting his sufficiency-of-the-evidence challenge, in an unreported decision on August 30, 2000. On February 20, 2001, Herndon filed an application for postconviction relief. His counsel later filed an amended application which the district court denied following a hearing.
In denying Herndon's postconviction relief application, the district court rejected the State's assertion Herndon had waived the ineffective assistance of counsel claims by failing to raise them on direct appeal or show sufficient reason for failing to have done so. It credited Herndon's testimony that his direct appeal counsel consulted with him and informed him the record was insufficient to support such a claim. The district court therefore determined Herndon presented a sufficient reason for not raising the claims on direct appeal, and accordingly reached the merits of Herndon's ineffectiveness claims, but rejected them in their entirety. Herndon appeals from this ruling.
We ordinarily review postconviction proceedings for errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). However, when there is an alleged denial of constitutional rights, our review is de novo. Id.
We affirm the district court's denial of Herndon's postconviction relief application. Although the district court reached the merits, we affirm based on our conclusion Herndon waived the issues to failing to raise them on direct appeal or show sufficient reason for his failure to do so. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding we may affirm based on a reason not relied upon by the district court but urged by the State below).
We also note Herndon's appellate brief fails to state how error was preserved. See Iowa R.App.P. 6.14(1)( f) (requiring statement of error preservation with references to the record).
Iowa Code section 822.8 (2001) requires postconviction relief applicants to raise all grounds for relief in their original, supplemental, or amended applications, except where there is "sufficient reason" it was not raised or was inadequately asserted. See Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991).
Herndon did not challenge, on direct appeal, the performance of his trial counsel. Moreover, he does not now assert any reason for having failed to raise the current claims of ineffective assistance of counsel on direct appeal.
The only reason presented during this postconviction proceeding for failure to have previously raised the claims is Herndon's assertion direct appeal counsel, Dennis Hendrickson, expressed his opinion the record was insufficient to support the claim. In Berryhill v. State, 603 N.W.2d 243, 245-46 (Iowa 1999), our supreme court held all claims should be raised on direct appeal, even if the existing record is inadequate, to allow an appellate court to preserve them for postconviction relief. Ineffective assistance of appellate counsel may provide sufficient reason or cause to permit the issue of ineffective assistance of trial counsel to be raised for the first time in a postconviction proceeding. LeGrand v. State, 540 N.W.2d 667, 668 (Iowa Ct.App. 1995). However, Herndon makes no claim that his direct appeal counsel was ineffective.
Accordingly, we conclude Herndon failed to establish sufficient reason for failing to raise his ineffective assistance of counsel claims on direct appeal, and therefore affirm the denial of his postconviction relief application.