IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1586
                            Filed September 11, 2019


CARL JULIUS BENNETT,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Carl Bennett appeals the denial of his application for postconviction relief.

AFFIRMED.



      Kevin Hobbs, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.



      Considered by Potterfield, P.J., and Tabor and Greer, JJ.
                                         2


GREER, Judge.

      Carl Bennett appeals the denial of his application for postconviction relief

(PCR), arguing he is innocent and that his trial counsel was ineffective. After

reviewing the record, we agree with the district court that there is overwhelming

evidence of Bennett’s guilt and that he did not prove his attorney was ineffective.

We affirm.

      I. Background Facts and Proceedings.

      A series of Carl Bennett’s bad decisions brings us to this appeal. On May

8, 2015, Bennett’s friend and neighbor, T.B., gave him a ride home from work.

During the ride, Bennett allegedly became angry at T.B., punched her in the face,

and told her he was going to steal her 2006 Saturn Vue. When they arrived at their

apartment complex, Bennett told T.B. to exit the vehicle. T.B. complied, and

Bennett drove off with the vehicle.

      The next day, Bennett allegedly began driving the Vue back and forth in the

apartment complex parking lot while taunting T.B. over the phone. Candidly, he

admits he intentionally rammed the Vue into a 1998 Honda Prelude in the lot,

damaging both vehicles. Likewise, T.B. and three other residents of the apartment

complex watched Bennett ram the Prelude. To avoid the consequences of his

behavior, Bennett hid in the closet of the apartment building where he was staying

with his girlfriend, K.A. Police arrived shortly after and found Bennett. During the

struggle with the officers, and at Bennett’s request, K.A. recorded part of the

interaction on her cell phone. At the direction of the officers, she provided this

video to police. In the end, the officers secured and arrested Bennett.
                                             3


       The State charged Bennett with five counts arising out of the events on May

8 and 9.1 These charges carried a maximum sentence of twenty years in prison

and a mandatory minimum of seven years.

       While the first criminal case was pending, Bennett experienced yet another

encounter with law enforcement. On November 5, police responded to a shots-

fired call. Officers observed Bennett nearby and tried to speak with him. Ignoring

their questions and directives, Bennett remained on his cell phone. As one officer

reached for Bennett’s phone, a struggle ensued. In the fray, Bennett struck an

officer twice with a closed fist. As he threatened and kicked at other officers, they

physically restrained him. Afterward, Bennett began complaining about injuries,

and the officers called medics to respond. While waiting for the medics, Bennett

tried to bite and kick the officers and made numerous threats. When medics

sought to treat him, Bennett kicked one of the medics, spat on an officer in the

ambulance, and threatened to kill other officers. One officer suffered a broken

finger during this incident.

       The State charged Bennett with seven counts following the November 5

incident.2 These charges carried a maximum sentence of seventeen years in

prison.



1
  The charges in the May incident were: robbery in the second degree in violation of Iowa
Code sections 711.1 and 711.3 (2015); assault causing bodily injury in violation of Iowa
Code sections 708.1 and 708.2(2); criminal mischief in the second degree in violation of
Iowa Code sections 716.1 and 716.4; assault on a police officer causing injury in violation
of Iowa Code sections 708.1 and 708.3A(3); and interference with official acts in violation
of Iowa Code section 719.1.
2
  The charges in the November incident were: two counts of assault on a police officer
with intent to inflict serious injury in violation of Iowa Code sections 708.1 and 708.3A(1);
two counts of assault on a health care provider in violation of Iowa Code sections 708.1
and 708.3A(4); one count of assault on a police officer in violation of Iowa Code sections
                                           4


       With both criminal cases pending, Bennett accepted a plea agreement in

February 2016. As for the May incident, Bennett pleaded guilty to one count of

operating a motor vehicle without owner’s consent, assault causing bodily injury,

criminal mischief in the second degree, and assault on a police officer causing

injury. To resolve the November incident, Bennett pleaded guilty to two counts of

assault on a police officer with intent to inflict serious injury and two counts of

assault on a health care provider.

       During the plea colloquy, the court reviewed: (1) each count of the plea

agreement, (2) the factual basis for each act, (3) the rights Bennett waived by

pleading, (4) Bennett’s satisfaction with his attorney, and (5) extensive details

about Bennett’s mental health.        In response to the court’s inquiry, Bennett

confirmed his understanding of these matters and described his actions related to

each charge. Accordingly, the court accepted the guilty plea, and because Bennett

waived the presentence investigation report and his right to file a motion in arrest

of judgment, sentencing followed. As a result, the court sentenced Bennett to a

total term not to exceed fifteen years in prison.

       On December 14, Bennett applied for PCR, amended by his appointed

postconviction counsel. In the PCR hearing, Bennett raised several complaints,

not all set out in the amended application. After considering all claimed issues, the

district court denied the application. Bennett appeals.




708.1 and 708.3A(4); and one count of harassment in the first degree in violation of Iowa
Code sections 708.7(1) and 708.7(2).
                                           5


      II. Standard of Review.

      We review freestanding actual innocence claims under the Iowa

Constitution de novo. Schmidt v. State, 909 N.W.2d 778, 797–98 (Iowa 2018);

State v. Shultsev, No. 17-1766, 2018 WL 4923139, at *1 n.1 (Iowa Ct. App. Oct.

10, 2018) (noting de novo standard of review). We review claims of ineffective

assistance of counsel de novo. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).

      III. Analysis.

      In this postconviction action, Bennett argues that he is innocent of the

crimes to which he pleaded guilty and that his counsel was ineffective. With those

issues in mind, we consider this record.

      A. Actual Innocence: A defendant may challenge a criminal conviction

despite a guilty plea when they claim they were innocent of the crime. Schmidt,

909 N.W.2d at 795–96 (addressing plea to going armed with a dangerous weapon

challenged because of newly discovered witness testimony about justification

defense). To succeed on an actual innocence claim, an “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.” Id. at 797.       Clear and convincing

evidence of innocence exists when the evidence shows no serious or substantial

doubt as to the innocence of the accused. See State v. Huss, 666 N.W.2d 152,

160 (Iowa 2003) (discussing clear and convincing standard).

      To begin, Bennett maintains his innocence as to all charges that were part

of his voluntary guilty plea except for the criminal mischief charge. According to
                                               6


Bennett, someone else assaulted T.B. at a party on May 8 and Bennett drove her

home because she was intoxicated. Bennett also claims M.F. picked him up from

work on May 8, not T.B. To prove his innocence, he claims a woman3 could have

testified that he did not assault T.B.

          As for other evidence of innocence, Bennett also argues that his attorney

failed to interview two key witnesses, K.A. and L.J. Bennett points to K.A.’s

recorded interaction between himself and the police officers inside the apartment

on May 9. He believes this video would show he did not fight the officers. With

the claimed testimony from L.J., Bennett offers “proof” that during his November 5

conversation with L.J., she knew he had a splint on his left hand and she heard

him telling the officers about his mental-health issues.

          Yet Bennett did not call any of these witnesses to testify under oath at the

PCR hearing nor did he submit affidavits or other evidence to corroborate his

claims. Likewise, K.A. turned the video over to the police, and Bennett’s trial

counsel acknowledged it was not helpful to the case. Nor does Bennett indicate

how L.J.’s testimony would have trumped the eyewitness testimony of the officers

and medics involved in the second incident.

          In all, Bennett’s self-serving hearsay statements fail to establish his

innocence by clear and convincing evidence. See Kirchner v. State, 756 N.W.2d

202, 206 (Iowa 2008) (concluding that the applicant’s self-serving statements,

unsupported by evidence, were inadequate to establish his PCR claims).

Moreover, Bennett’s trial counsel testified that Bennett never claimed his



3
    Bennett could only identify this witness by a first name.
                                           7


innocence and did not want to go to trial. This testimony matches a letter Bennett

sent to the trial court stating in part that he was willing to take “full responsibility”

for his actions.

       Bennett’s self-serving statements also conflict with his admissions during

the plea colloquy. Bennett admitted that during the May incident he (1) took the

victim’s car without her permission, (2) hit the victim causing bruises, (3) drove her

car into another car causing damage, and (4) pushed an officer into the wall during

his arrest and injured another officer who fell. As to the November incident,

Bennett admitted he (1) punched and kicked police officers intending to injure them

and (2) assaulted health care providers by spitting on them. Likewise, Bennett

confirmed that he understood the plea agreement, wanted to proceed, and

accepted he gave up his right to call witnesses at a trial.

       In the end, Bennett failed to show by clear and convincing evidence that no

factfinder could convict him of the crimes involved, despite the State’s evidence of

guilt. We agree with the district court’s confirmation that “Bennett has wholly failed

to meet this rigorous [clear and convincing] standard.”

       B. Ineffective Assistance of Counsel. We begin analyzing ineffective-

assistance-of-counsel claims with the strong presumption that counsel’s

performance meets professional standards. State v. Oetken, 613 N.W.2d 679, 683

(Iowa 2000). To prevail on a claim of ineffective assistance, a claimant must show

by a preponderance of the evidence (1) that counsel failed to perform an essential

duty and (2) that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687

(1984); accord State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish

the first prong, the claimant must show that counsel’s performance was
                                         8


unreasonable under prevailing professional norms given all the circumstances.

Linn v. State, 929 N.W.2d 717, 730 (Iowa 2019).

      To establish prejudice, the claimant must prove there is a reasonable

probability that the outcome of the proceeding would have been different but for

counsel’s unprofessional errors. Id. at 731. The claimant must show that the

probability of a different result is “sufficient to undermine confidence in the

outcome.” Bowman v. State, 710 N.W.2d 200, 206 (Iowa 2006) (quoting State v.

Graves, 668 N.W.2d 860, 882 (Iowa 2003)). We will consider what factual findings

counsel’s errors affected and whether the effect was pervasive or isolated and

trivial. Graves, 668 N.W.2d at 882–83.

      As the United States Supreme Court stated,

      The object of an ineffectiveness claim is not to grade counsel’s
      performance. If it is easier to dispose of an ineffectiveness claim on
      the ground of lack of sufficient prejudice, which we expect will often
      be so, that course should be followed. Courts should strive to ensure
      that ineffectiveness claims not become so burdensome to defense
      counsel that the entire criminal justice system suffers as a result.

Strickland, 466 U.S. at 697.

      Bennett claims his trial counsel was ineffective by failing to (1) investigate

witnesses favorable to his defenses and otherwise do pretrial discovery, (2) move

to reduce his bond, (3) address his competency for trial, and (4) regularly meet

with him and properly explain the plea agreement.

      1. Failure to investigate. During the PCR hearing, trial counsel outlined

overwhelming evidence mitigating against a jury trial, including Bennett’s guilty

behavior of hiding from the authorities. Independent eyewitnesses to the May

incident corroborated the State’s theory, and a video captured Bennett’s assault
                                            9


on the arresting officers. As to the November 5 incident, the officers and medics

were eyewitnesses to—and victims of—Bennett’s assaults. The notes from trial

counsel’s client conferences do suggest Bennett offered names of witnesses with

factual versions conflicting with the trial information. Yet at the PCR hearing,

Bennett failed to prove that these witnesses would actually testify as he claimed or

present evidence corroborating these hearsay statements. See Sims v. State, 295

N.W.2d 420, 423 (Iowa 1980) (noting that a PCR applicant failed to demonstrate

how proffered testimony of witness would have effected trial outcome). Thus,

Bennett cannot show prejudice based on trial counsel’s lack of investigation.

       2. Failure to move to reduce bond. Bennett bonded out after the May

incident. Of course, he wanted the same result after the November incident. Given

Bennett’s long history of assaultive behavior,4 as well as a new allegation of

assaulting law enforcement, Bennett’s expectation of success at a second bond

hearing was a fantasy. See State v. Kellogg, 534 N.W.2d 431, 434 (Iowa 1995)

(stating courts may consider “whether the defendant would pose a danger to others

or to the community if released” when setting conditions for release on bond).

Bennett cannot show prejudice on his counsel’s failure to seek a bond reduction.

       3.    Failure to address his competency.              Bennett testified he has

schizoaffective disorder, bipolar disorder, depression, anxiety, and borderline

personality traits. After his arrest for the first offenses, Bennett wrote the presiding

judge to request leniency, discussed his hallucinations and propensity to hear




4
  Bennett’s criminal history includes convictions of eleven assault charges, seven of which
involved police officers, one charge of operating without owner’s consent, one theft
charge, and six criminal mischief charges.
                                          10


voices, and suggested probation for the crimes.

       To assure Bennett’s competence, his trial counsel reviewed Bennett’s

mental-health records from various providers, included the mental-health advocate

in client meetings, and confirmed Bennett understood the terms of the plea. At the

plea hearing, Bennett and his counsel recited Bennett’s underlying mental-health

history to the court. In particular, the district court carefully outlined and discussed

Bennett’s ability to understand the court, the charges imposed, and the possibility

of available defenses besides a general denial. Because Bennett addressed each

topic with verbal responses, the district court properly assessed Bennett’s

competency, demeanor, and understanding of the proceedings. As with the other

claims of ineffectiveness, Bennett has failed to show prejudice.

       4.   Failure to communicate and explain plea agreement.               From the

beginning of the representation, trial counsel confirmed that Bennett urged a plea

deal and no trial. That strategy appears in the letter Bennett sent to the presiding

judge. Given the potential charges and maximum sentence, Bennett’s criminal

history, and the violent nature of the charges, taking a plea agreement was a

rational and reasonable decision. See Cole v. State, No. 15-0344, 2016 WL

7395722, at *3 (Iowa Ct. App. Dec. 21, 2016) (finding no prejudice where there

was “little evidence [the defendant] would have rejected the plea agreement,” the

State's case against the defendant appeared strong, and the defendant had

“received substantial concessions in exchange for his guilty plea”).

       That said, Bennett complains now he did not understand the difference

between consecutive and concurrent sentencing when entering his plea. Evidence

at the PCR proceeding suggests that trial counsel conferenced before the plea and
                                          11


sentencing proceedings with Bennett and others to address the plea conditions.

Similarly, Bennett and the trial court discussed the terms of the agreement, and

Bennett’s criminal history suggests he had experience with the application of those

concepts in earlier unrelated plea deals. Finally, the court emphasized Bennett’s

right to confer with counsel at any step of the proceedings, but he never requested

a conference. Instead, Bennett confirmed his understanding and answered a

series of questions about each charge. Nothing in this record supports the notion

that trial counsel’s representation falls short of the professional norms or that there

was any prejudice to Bennett.

       IV. Conclusion.

       For all of the above stated reasons, we affirm the district court’s denial of

Bennett’s application for postconviction relief.

       AFFIRMED.