Daniel Wayne Ockenfels v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0064
Filed March 29, 2023

DANIEL WAYNE OCKENFELS,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.

The applicant seeks postconviction relief from his convictions for assault on

a peace officer and disarming a police officer of a dangerous weapon. AFFIRMED.

Gary Dickey of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines, for

appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., Schumacher, 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.

Daniel Ockenfels seeks postconviction relief (PCR) from his convictions for

assault on a peace officer and disarming a police officer of a dangerous weapon.

Ockenfels has not shown he received ineffective assistance due to defense

counsel’s failure to file a motion to suppress, object to a witness’s statement, or

raise the defense of justification and necessity. Also, he has not supported his

claim of actual innocence. We affirm the district court’s decision denying his PCR

application.

I. Background Facts & Proceedings

On March 21, 2018, a Des Moines police officer attempted to initiate a traffic

stop of a vehicle driven by Ockenfels. Ockenfels drove off and a high-speed chase

ensued. Officers managed to stop Ockenfels’s vehicle with a pursuit intervention

technique, but Ockenfels tried to escape on foot. The officers ran after Ockenfels,

who punched one of the officers in the face twice. Ockenfels obtained the officer’s

taser and threatened to shoot the officer. The officers subdued and arrested

Ockenfels.

Ockenfels was convicted of assault on a peace officer, in violation of Iowa

Code section 708.3A(2) (2018), and disarming a police officer of a dangerous

weapon, in violation of section 708.13.1 The convictions were affirmed on appeal.

State v. Ockenfels, No. 18-1721, 2020 WL 110301, at *3 (Iowa Ct. App. Jan. 9,

2020).

1Ockenfels was also convicted of driving while barred and eluding. His PCR
application does not address these convictions.
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On August 28, 2020, Ockenfels filed a PCR application. He claimed he

received ineffective assistance due to defense counsel’s (1) failure to file a motion

to suppress; (2) object to a statement by the prosecutor during closing arguments;

or (3) raise the defense of justification. He also raised a claim of actual innocence.

At the PCR hearing, Ockenfels testified police officers used excessive force.

He claimed he did not hit anyone. Ockenfels stated it felt like the taser was placed

in his hand. Ockenfels denied using any curse words. He believed he was

prejudiced because defense counsel did not object to a witness’s statement that

Ockenfels called the officers “motherf***ers.” He also claimed defense counsel

should have raised the defense of justification or self-defense during the criminal

trial. Defense counsel testified it would have been inconsistent to raise a defense

of justification when Ockenfels denied using force against the officers.

The district court denied Ockenfels PCR application. The court found

officers did not use excessive force when they arrested Ockenfels, noting “[a]n

uncoooperative suspect who is attempting to flee justifies the imposition of more

force.” Also, the prosecutor legitimately referenced the testimony of an officer and

Ockenfels was not prejudiced by the statement. The court determined defense

counsel made a strategic decision not to raise the defense of justification as it was

inconsistent with Ockenfels’s testimony at the criminal trial. Finally, the court found

Ockenfels did not support his claim of actual innocence with clear and convincing

evidence. Ockenfels appeals the district court’s decision.

II. Ineffective Assistance

We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
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ineffective assistance of counsel, an applicant must prove: (1) counsel failed to

perform an essential duty and (2) the failure resulted in prejudice. State v. El-Amin,

952 N.W.2d 134, 138 (Iowa 2020). “We presume counsel performed competently

unless the claimant proves otherwise by a preponderance of the evidence.” State

v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020). “Prejudice occurs if ‘there is a

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

of the proceeding would have been different.’” State v. Warren, 955 N.W.2d 848,

859 (Iowa 2021) (citation omitted).

A. Ockenfels claims he received ineffective assistance because defense

counsel did not file a motion to suppress his statements and conduct following the

use of excessive force by police officers.

Ockenfels testified at the PCR hearing, “I didn’t hit anybody; I didn’t take

anybody’s weapon.” During his criminal trial, however, Officer James Chadwick

testified that as he was pursuing Ockenfels, Ockenfels turned around and punched

the officer in the face twice then took his Taser. The officer responded by punching

Ockenfels in an effort to get away. Officer Ryan Doty testified that he came on the

scene when Ockenfels was struggling with Officer Chadwick and Ockenfels said,

“I’ve got a gun, motherf***er.” Other officers used a Taser on Ockenfels and were

able to take him into custody.

“A peace officer, while making a lawful arrest, is justified in the use of any

force which the peace officer reasonably believes to be necessary to effect the

arrest or to defend any person from bodily harm while making the arrest.” Iowa

Code § 804.8(1). In determining whether force is reasonable, a court uses an

objective standard. Chelf v. Civ. Serv. Comm’n of City of Davenport, 515 N.W.2d
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353, 355 (Iowa Ct. App. 1994). The PCR court found “police officers did not use

excessive force when they arrested Ockenfels” and we agree with this

assessment. Ockenfels has not shown defense counsel breached an essential

duty by failing to file a motion to suppress based on the officers’ use of excessive

force, as the force used was reasonable to the circumstances.

Also, Ockenfels has not shown he was prejudiced by defense counsel’s

performance. In his brief on appeal, Ockenfels does not specify the statements or

conduct he believes should be suppressed. See Dunbar v. State, 515 N.W.2d 12,

15 (Iowa 1994) (“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.”). Furthermore, Ockenfels has not cited

authority to show that even if excessive force had been used, the proper remedy

would be to suppress statements made at the time of arrest. See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”). We conclude Ockenfels has failed to show he received

ineffective assistance on this issue.

B. Ockenfels contends he received ineffective assistance because

defense counsel did not object during the prosecutor’s questioning of Officer Doty.

During the criminal trial, the following exchange occurred:

Q. I’m going to publish State’s Exhibit No. 17. (The video was
played.)
Q. What did you hear there? Even though it’s a little muffled,
you were right at the scene. What did you just hear? A. I’ve got a
gun, motherf***er.
Q. Who said that? A. Mr. Ockenfels.
Q. When officers hear an individual say, I have a gun,
motherf***er, what comes to mind? A. That we need—
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Q. What concerns do you have? A. That somebody is going
to get shot, that one of my officers is going to get shot.

Ockenfels argues that defense counsel should have objected to Officer

Doty’s testimony that he used the term “motherf***ers,” as he believes this

prejudiced the jury against him. At the PCR hearing, Ockenfels testified that he

does not curse or use swear words. He testified he believed Officer Doty used the

term but the officer falsely attributed it to him.

Defense counsel testified at the PCR hearing that he did not remember any

issue during the trial about the use of profanity. The PCR court concluded

Ockenfels did not show that if the statement had not been attributed to Ockenfels,

the result of the trial would have been different. Based on the testimony of the

officers and the videotape evidence, we find the result of the trial would not have

been different if the evidence that Ockenfels used the term “motherf***ers” was

excluded. We conclude Ockenfels has not shown he was prejudiced by defense

counsel’s alleged unprofessional errors. See Warren, 955 N.W.2d at 859. “If the

claim lacks prejudice, it can be decided on that ground alone without deciding

whether the attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001). We determined Ockenfels has not shown he received ineffective

assistance on this ground.

C. Ockenfels asserts that he received ineffective assistance because

defense counsel did not research or assert the defenses of justification and

necessity.2 At the PCR hearing, Ockenfels testified he had a good faith belief and

2 “Justification is a statutory defense permitting a person to use reasonable force,
including deadly, if that person reasonably believes the force used was necessary
to defend himself or another from any imminent use of unlawful force.” State v.
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fear of bodily injury from the officers and took steps reasonably necessary to

attempt to avoid injury. He states that he used reasonable force in an effort to

defend himself. He also claimed that in a choice between two evils—getting beat

up or using force against the officers—he opted for what he believed was the lesser

evil—striking an officer.

At the criminal trial and during the PCR hearing, Ockenfels testified he did

not assault anyone and did not use force against anyone. At the PCR hearing,

however, he also testified counsel should have raised a justification defense.

Defense counsel testified that a defense of justification or necessity would have

been inconsistent with Ockenfels’s testimony “[b]ecause those defenses assume

that there was a use of force.” Defense counsel stated the defenses of justification

and necessity were not raised for strategic reasons.

In general, “strategic decisions made after ‘thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.’” Ledezma,

626 N.W.2d at 143 (citation omitted). “Miscalculated trial strategies and mere

mistakes in judgment normally do not rise to the level of ineffective assistance of

counsel.” Id. Ockenfels has not shown he received ineffective assistance due to

defense counsel’s strategic decision not to raise inconsistent defenses.

III. Actual Innocence

Ockenfels claims the PCR court should have granted his request for relief

on the ground of actual innocence. “[A] [PCR] applicant can establish a claim of

Fordyce, 940 N.W.2d 419, 425 (Iowa 2020) (citing Iowa Code § 704.1). In the
defense of necessity, a defendant is “required to choose the lesser of two evils and
thus avoid[] a greater harm by bringing about a lesser harm.” State v. Harrison,
473 N.W.2d 242, 243 (Iowa Ct. App. 1991).
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actual innocence only upon clear and convincing evidence he or she was factually

innocent of the offense of conviction, including any lesser included offenses

thereof.” Dewberry v. State, 941 N.W.2d 1, 10 (Iowa 2019).

For an applicant to succeed on a freestanding actual-innocence
claim, the applicant must show by clear and convincing evidence
that, despite the evidence of guilt supporting the conviction, no
reasonable fact finder could convict the applicant of the crimes for
which the sentencing court found the applicant guilty in light of all the
evidence, including the newly discovered evidence.

Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018). We review a claim of actual

innocence de novo. Dewberry, 941 N.W.2d at 4.

Ockenfels did not present any new evidence at the PCR hearing to support

his claim of actual innocence. He asked the court to review the evidence presented

during his criminal trial. The PCR court found there was substantial evidence in

the record to support the jury’s verdict. We conclude Ockenfels has failed to show

by clear and convincing evidence that no reasonable fact finder would convict him.

See Schmidt, 909 N.W.2d at 797. We find Ockenfels has not shown he was

actually innocent of the offenses for which he was convicted.

We affirm the district court’s decision denying Ockenfels’s PCR application.

AFFIRMED.