Daniel Joseph Poole v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1232
Filed March 8, 2023

DANIEL JOSEPH POOLE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Martha L. Mertz, Judge.

In a postconviction-relief action, the applicant appeals his convictions for

possession of a controlled substance with an intent to deliver. AFFIRMED.

William C.P. Westfall, Des Moines, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.

Considered by Bower, C.J., Ahlers, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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CARR, Senior Judge.

Following a morning-of-trial guilty plea, Daniel Poole was convicted of

possession of a controlled substance with an intent to deliver under Iowa Code

section 124.401(1)(b)(7) (2018). He did not appeal, but later applied for

postconviction relief (PCR), alleging ineffective assistance of counsel and plea

coercion; the PCR court rejected his arguments. Poole now appeals. We affirm,

finding counsel was not ineffective in the particulars claimed and that, even if

Poole’s coerced-plea claim was preserved, it was not proved.

I. Background Facts & Proceedings

On July 7, 2018, at about 3:00 a.m., Poole and a friend, Tristan Fast, were

walking on a city sidewalk in Des Moines when approached by police officers. The

officers were looking for a suspect that matched Fast’s description. The officers

approached the pair. As the officers neared the two, they noticed Poole had an

open container of alcohol on him. Poole quickly turned away, bent over, and

appeared to try to hide something in the area of his waist. As the officers sought

to restrain him, Poole flung an object into the adjacent street. The officers

restrained and handcuffed Poole and Fast. They found a baggie in the street which

later proved to be methamphetamine weighing a quarter pound.

After securing the two, the police retrieved the methamphetamine and

searched Poole, finding $3126 and a prescription bottle containing various pills,

none of which were prescribed for Poole. Poole said the money came from

savings, although he had no job. Poole refused to give them his name. Much later

he explained the money came from a personal injury settlement. The officers

arrested Poole but released Fast.
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Poole was charged with five felonies, all enhanced because of Poole’s prior

felony and drug convictions. Before trial, Poole conferred with his attorney about

his chances at trial and what his potential sentence might be.

On the morning of trial, the parties reached a plea agreement, which

provided that Poole would plead guilty to possession of a controlled substance with

intent to deliver under section 124.401(1)(b)(7) and the State would dismiss the

remaining counts. In the course of the record made during the plea of guilty,

defense counsel explained he did not file a motion to suppress because he

believed the officers had a strong argument for conducting the Terry stop which

led to Poole’s arrest. See Terry v. Ohio, 392 U.S. 1, 30 (1968). He also articulated

that Poole was subject to arrest for possessing the open container on the public

sidewalk, justifying his custodial arrest, and that the methamphetamine thrown into

the street could be deemed abandoned and, therefore, not subject to suppression.

Defense counsel also noted the State’s policy to rescind any plea offer if a motion

to suppress had been filed.

After the court accepted Poole’s oral guilty plea, Poole requested immediate

sentencing, and the court made a record on Poole’s right to file a motion in arrest

of judgment and use of a presentence investigation at sentencing. Poole waived

his right to each. Poole also stated that his plea was not coerced and that he had

enough time to discuss his case with his attorney. The court found Poole

voluntarily admitted to his guilt.

The court sentenced Poole according to the plea agreement. Poole did not

appeal his sentence or conviction, but he filed a PCR application in October 2019.
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The court heard the matter in July 2021 and issued an order a month later, denying

the application. Poole now appeals the denial.

II. Standard of Review

Generally, PCR proceedings are reviewed for the correction of errors at law.

Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). If a claim involves a fundamental

constitutional right, however, our review is de novo. Id. “On de novo review, ‘we

give weight to the lower court’s findings concerning witness credibility,’ [b]ut we

are not bound by the lower court’s determination.” Sothman v. State, 967 N.W.2d

512, 522 (Iowa 2021) (citations omitted).

III. Ineffective Assistance

To show ineffective assistance of counsel, Poole must demonstrate both a

breach of an essential duty by counsel and prejudice “sufficient to undermine our

confidence in the outcome.” See State v. Swift, 955 N.W.2d 876, 881 (Iowa 2021).

“We presume counsel performed competently unless the claimant proves

otherwise by a preponderance of the evidence. Counsel’s performance is

measured objectively against the prevailing professional norms after considering

all the circumstances.” State v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020)

(citation omitted). Establishing prejudice requires the applicant to show a

reasonable probability that but for counsel’s unprofessional errors, “the result of

the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 694 (1984). In the context of a claim of ineffective assistance in a guilty plea

proceeding, the prejudice the applicant must prove is that, but for counsel’s errors,

he or she would not have pleaded guilty and would have insisted on going to trial.

State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).
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A. First, Poole argues ineffective assistance based on his trial counsel’s

failure to investigate his claims of actual innocence. He contends trial counsel

incorrectly advised him about the police body cam footage and $3126 found on

Poole, telling him both pieces of evidences showed Poole’s guilt. Counsel’s failure

to investigate these points further, Poole contends, constituted ineffective

assistance of counsel.

We have struggled to understand Poole’s precise claim entitling him to

relief. If he is advancing a free-standing claim of actual innocence grounded in

Schmidt v. State, 909 N.W.2d 728 (Iowa 2018), he would need to prove his actual

innocence by clear and convincing evidence. The two topics he proffers, the

claimed failure of the police body camera footage to clearly depict his throwing the

baggie into the street and his explanation of his receipt of the cash do not negate

a finding of his guilt. He knew what his actions were and the source of the cash

as soon as his arrest. We have reviewed the body camera video. It is too dark to

see the throw, but it corroborates the police account in all other particulars,

including showing discovery of the baggie near the location of Poole’s

apprehension. As the forfeiture court noted in its ruling entered four months after

Poole’s plea of guilty, it is likely the insurance settlement money was used to

purchase the methamphetamine in the baggie and does not negate a finding he

possessed it with intent to deliver it. Any claim of actual innocence would fail.

If Poole’s claim is that his plea counsel was ineffective for failing to look

further into the two topics, his claim would fail as well. Counsel’s conduct in failing

to further investigate topics already well known to Poole was not a breach of a duty

and did not prejudice Poole. Conclusory claims that argue counsel “should have
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done more” are not enough to show a breach of duty. See Dunbar v. State, 515

N.W.2d 12, 15 (Iowa 1994).

B. Poole next alleges ineffective assistance of counsel based on trial

counsel’s failure to file a motion to suppress. He argues the arresting officers

illegally stopped and searched him, and the failure to file a motion to suppress the

search constituted ineffective assistance.

We disagree. Counsel has no duty to file futile motions. See State v.

Dudley, 766.W.2d 606, 620 (Iowa 2009) (recognizing counsel has no duty to raise

issues without merit). Trial counsel explained at the plea hearing why a motion to

suppress would not have succeeded, as the officers had reasonable cause for

conducting the initial Terry stop that led to the arrest. See Terry, 392 U.S. at 30.

Further, it was arguable that the baggie of methamphetamine thrown into the street

had been abandoned and Poole had no standing to object to its seizure. Finally,

as plea counsel articulated, Poole’s possession of the open container alone would

have justified his arrest and search. Trial counsel was not ineffective for failing to

move to suppress.

IV. Plea Coercion

Last, Poole contends his plea was coerced by trial counsel, arguing that

counsel threatened him into taking the plea ageement. Poole alleges that trial

counsel told him a jury would convict him, threatening perjury charges, federal

prosecution, and a potential long prison sentence that Poole would live to “regret

for a long time.”

Poole cannot attack his guilty plea, having waived his right to file a motion

in arrest of judgment and proceeding to immediate sentencing. To attack a plea
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as coerced, a defendant normally must file a motion in arrest of judgment within

forty-five days of the plea entry but no more than five days before sentencing. Iowa

R. Crim. P. 2.24(2)(a). Poole waived his ability to file a motion in arrest of judgment

during the plea hearing, which precludes his ability to attack his plea as coerced in

a postconviction petition. See Iowa Code § 822.8.

Even if Poole had not waived his right to attack his plea as coerced, his

argument would still fail. Nothing in the record suggests trial counsel coerced

Poole into pleading guilty. Trial counsel gave Poole his candid, indeed, blunt,

opinion about the likely outcome of the case if it went to trial. Poole entered the

plea agreement freely, voluntarily, and without coercion. See State v. Bastedo,

111 N.W.2d 255, 258 (Iowa 1961). Poole has not satisfied his burden to show that

his plea was coerced. See Hahn v. State, 306 N.W.2d 764, 769 (Iowa 1981).

We affirm the PCR court on appeal.

AFFIRMED.