Nyerere Dezhay Waller v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1636
Filed October 5, 2022

NYERERE DEZHAY WALLER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.

Nyerere Waller appeals the denial of his application for postconviction relief.

AFFIRMED.

Emily DeRonde of DeRonde Law Firm, PLLC, Johnston, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

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

*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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BOWER, Chief Judge.

Nyerere Waller appeals the denial of his application for postconviction relief

(PCR). We affirm.

On February 12, 2016, Waller was charged by trial information with

attempted murder, first-degree robbery, intimidation with a dangerous weapon,

going armed with intent, and willful injury. The charges arose after Waller and

others attacked the victim, pistol-whipped him, removed him from his vehicle at

gunpoint, forced him back into an apartment complex, and transported him by force

to an upper floor. The person eventually escaped, running down a hallway as

Waller fired four shots toward him. If found guilty on all original charges, Waller

faced sentences totaling seventy years. The State later filed an amended trial

information adding a charge of second-degree kidnapping, with a maximum

sentence of twenty-five years.

The parties entered into a plea agreement whereby Waller would plead

guilty to second-degree robbery, with a ten-year term of imprisonment, and

second-degree kidnapping, with a twenty-five-year term, the sentences to run

consecutively. The State would dismiss the remaining charges. Because Waller

was seventeen years old at the time of the offense, no mandatory minimums would

be imposed.

The court established factual bases for both charges during the plea hearing

and accepted the pleas as voluntarily entered. No motion in arrest of judgment

was filed, and on August 5, 2016, the court sentenced Waller to consecutive terms,

finding
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this is the plea agreement of the parties and in addition, the court
finds that due to the seriousness of the offenses and the fact that a
dangerous weapon was used and an injury to the victim, that the
sentence is appropriate. The court further finds that the mandatory
minimum sentencing requirements of Iowa Code section 902.12
[(2016)] will not be imposed due to [Waller’s] age.

No appeal was filed.

On June 19, 2019, Waller filed a PCR application, alleging plea counsel

provided constitutionally defective representation. Waller contends his counsel

failed to advise him of potential defenses to kidnapping, allowed him to plead guilty

where there was no factual basis for second-degree kidnapping, failed to file an

appeal, and did not request any sentence other than prison. The district court

considered the stipulated record and found there was a factual basis to support

the plea to kidnapping, plea counsel had adequately advised Waller about the filing

of the kidnapping charge, and counsel did not breach any duty at the sentencing

hearing by complying with the plea agreement or in not filing an appeal.

Consequently, the court dismissed the application. Waller appeals.

We ordinarily review PCR proceedings for errors at law. Lamasters v. State,

821 N.W.2d 856, 862 (Iowa 2012). But “we review claims of ineffective assistance

of counsel de novo.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

To establish ineffective assistance of counsel, [the applicant] must
demonstrate his plea counsel “failed to perform an essential duty”
that resulted in prejudice. “Counsel breaches an essential duty when
counsel makes such serious errors that counsel is not functioning as
the advocate the Sixth Amendment guarantees.” “[T]o satisfy the
prejudice requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he or she would
not have pleaded guilty and would have insisted on going to trial.” “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
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Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021) (alteration in original) (internal

citations omitted). “We may affirm the district court’s rejection of an ineffective-

assistance-of-counsel claim if either element is lacking.” Lamasters, 821 N.W.2d

at 866 (citation omitted).

We agree with the district court Waller failed to prove counsel breached any

duty in representing Waller. The plea hearing was recessed to allow Waller time

to consult with his attorney regarding the kidnapping charge, and the defendant

ultimately assented to the terms of the plea agreement and pleaded guilty. Waller

acknowledged that during the plea hearing he affirmed that he and his cohorts

moved the victim from outside the car to inside the building to try to keep from

being seen or detected by police while they robbed the victim. See Sauser v.

State, 928 N.W.2d 816, 819–20 (Iowa 2019) (noting “[a]n essential element of

kidnapping requires a person to confine or remove another from one place to

another without authority” and requires evidence of confinement that made the

underlying crime “substantially more dangerous”).

The record contains a factual basis for the kidnapping plea.1 The PCR court

wrote:

The facts as discussed at the plea hearing and as
summarized in the minutes of testimony established that Waller and
his accomplices were attempting to rob [S.C.] of “money and drugs.”
Some confinement is inherent in the crime of robbery. But here
Waller and his accomplices moved and confined [S.C.] on two
separate occasions after they first attempted to rob him. First, they
forcefully removed him from the parking lot into, and confined him in,

1 The evidentiary threshold for accepting a guilty plea differs from the proof beyond
a reasonable doubt necessary to support a conviction. State v. Ortiz, 789 N.W.2d
761, 767–68 (Iowa 2010). “[W]e have held the record does not need to show the
totality of evidence necessary to support a guilty conviction, but it need only
demonstrate facts that support the offense.” Id. at 768.
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his own car. When they could not drive that car away because it was
stuck in the snow, they forcefully removed him to, and confined him
in, the apartment building. They effected both of these removals and
confinements with firearms. Both removals and confinements
significantly increased the risk to [S.C.] because the inside of his car
and the inside of his apartment building were outside public view, or
less visible to the public than the parking lot. Both significantly
lessened the risk of detection of the seizure and involuntary
confinement of [S.C.] and the risk of detecting the attempted
robbery. . . .
Thus by Waller’s own testimony, the extended confinement
and removal of [S.C.] from the parking lot into his car and then into
the apartment building was intended to avoid detection, facilitate the
escape and further the goal of robbing [the victim] of money and
drugs. This extended confinement and removal substantially
exceeded that ordinarily necessary to rob a person.

Waller acknowledged at the PCR trial that he understood and agreed with

counsel’s assessment “that effectively the only thing we could argue is that you

didn’t intend to kill the victim—the alleged victim, and therefore, you shouldn’t be

guilty of [attempted murder].” Waller acknowledged entering into the plea

agreement was in his best interest to avoid being convicted of all the charged

offenses.

Plea counsel was not required to seek probation where the plea agreement

called for consecutive terms of imprisonment. And, Waller raises no issues

counsel could have or should have raised on appeal. Because Waller has failed

to establish plea counsel breached any duty of representation, his ineffective-

assistance-of-counsel claim fails. We affirm.

AFFIRMED.