Gary Romello Wise v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-1885
Filed February 7, 2024

GARY ROMELLO WISE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple,

Judge.

An offender found guilty of first-degree robbery appeals the denial of his

application for postconviction relief. AFFIRMED.

Christopher Kragnes Sr., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke, Assistant Attorney

General, for appellee State.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
2

TABOR, Presiding Judge.

“The defense had no defense.” That brutally honest assessment came from

experienced public defender Matthew Hoffey, who represented Gary Wise in his

robbery prosecution. In this appeal from denial of postconviction relief (PCR),

Wise argues Hoffey provided ineffective assistance because he investigated no

defense and “bullied” Wise into waiving a jury trial. Wise also alleges that he was

prejudiced by the subpar performance of his PCR trial counsel, Jeremy Merrill.

Because Wise failed to show that Hoffey breached a material duty in the criminal

case or that Merrill’s performance in the PCR proceedings resulted in prejudice,

we affirm the denial of relief.

I. Facts and Prior Proceedings

Wielding a handgun, eighteen-year-old Wise held up the Pizza Hut where

he used to work. Wise took money from the cash registers and a safe. Although

he wore a bandana over his face, his former co-workers recognized his voice and

physical features. They told police where he lived. Police intercepted Wise’s car

near that address. When police stopped Wise, he admitted the handgun and

stolen cash were in his car. Officers also found a Pizza Hut money tray in the car.

During a police interview, Wise confessed to the robbery.

The State charged Wise with robbery in the first degree and carrying

weapons in August 2014. He waived his ninety-day and one-year speedy-trial

deadlines and sought more than twenty continuances. Finally, in April 2017, he

waived his right to a jury trial and agreed to a trial on the minutes of testimony.

The district court found him guilty of first-degree robbery. The State dismissed the

carrying-weapons charge. Because his offense was a forcible felony, the court
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had to impose a twenty-five-year sentence with a seventy percent mandatory

minimum before Wise was eligible for parole.

Wise appealed his sentence, arguing the mandatory-minimum term

constituted cruel and unusual punishment based on his age. We rejected his

constitutional challenge and affirmed his sentence. See State v. Wise,

No. 17-1121, 2018 WL 2246861, at *3 (Iowa Ct. App. May 16, 2018).

In December 2018, Wise applied for PCR. In his application filed without

the assistance of counsel, he alleged that attorney Hoffey was ineffective because

he failed to “perform any investigation in this case” and “bullied this applicant into

waiving a jury trial so that counsel did not have to perform voir dire.” After he was

appointed to represent Wise, attorney Merrill amended the PCR application to

reframe those claims.

That amended application alleged that Hoffey was “ineffective for failing to

inform applicant of the important constitutional rights he was waiving by stipulating

to a trial on the minutes” and “for failing to fully investigate existing defenses

available at the time of trial.” In a brief filed before the PCR hearing, Merrill focused

on Hoffey’s “recommendation” that Wise proceed to trial on the minutes of

testimony. Merrill argued: “It is not clear what motivated the decision to waive a

jury trial. . . . In any event, it is hard to imagine a trial strategy that would justify

that approach.” The brief concluded: “Since the decision to waive a jury trial and

bench trial resulted in Wise’s conviction and sentence to the maximum possible

crime without any strategic upside, Wise’s trial counsel was ineffective in this

case.” That reference to counsel’s ineffectiveness did not come with any

discussion of prejudice under Strickland v. Washington. See 466
4

U.S. 668, 695 (1984) (“[T]he question is whether there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.”).

At the PCR hearing, Wise testified he didn’t understand that he would serve

a “quarter seventy” if convicted of robbery in the first degree. So, according to

Wise, he agreed to have the judge decide his guilt based on the minutes not

knowing he faced twenty-five years in prison with a mandatory minimum of

seventeen and one-half years. Wise said Hoffey told him that the judge had “some

type of power over sentences for leniency.”

In his deposition, attorney Hoffey disputed Wise’s claimed ignorance.

Hoffey—who had been practicing criminal defense for decades—testified that he

advised Wise “from day one” that the judge had no sentencing discretion on a first-

degree robbery conviction. Hoffey also discussed the lack of options facing Wise.

Hoffey saw no grounds to challenge the police stop of Wise’s car or the admission

of his confession. Hoffey testified that his client “didn’t dispute any of the

allegations at all, and that kind of left me at a dead end.” The attorney told the

PCR court: “The evidence, in my opinion, was absolutely overwhelming.” In the

face of such overwhelming evidence, Hoffey believed “the objective” was “to try to

reach a plea agreement such as robbery in the second degree.” But he recalled

“we weren’t getting there, and so the trial was continued and continued and

continued as long as it was until finally the court’s patience ran out.” Hoffey said

he asked the prosecutors at each pretrial conference if they could plea bargain,

but no offer was forthcoming.
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As for agreeing to a trial on the minutes, Hoffey insisted that was Wise’s

choice. The attorney said he didn’t make a recommendation but instead discussed

Wise’s options with him. Those options were (1) pleading guilty to first-degree

robbery, (2) proceeding to a jury trial, (3) proceeding to a bench trial, or (4)

agreeing to a trial on the minutes of testimony. Hoffey testified: “I don’t think

Mr. Wise wanted to sit through a jury trial or a bench trial and preferred just to

submit it on the record, knowing what the result would be.” Hoffey also believed

that Wise, who was out on bond by the time the case finally came to trial, thought

that waiving a jury would likely “prolong his freedom” until the court issued its

written verdict.

The district court credited attorney Hoffey’s recollections and took “serious

issue” with the veracity of Wise’s testimony. Following that credibility

determination, the court found “an absence of any deficiency in the representation

of Hoffey on behalf of Wise.” Having found no breach of duty, the court did not

discuss the prejudice prong of Strickland. Because Wise did not carry his burden

to show ineffective assistance of counsel, the court denied relief.

Wise appealed. Before briefing, he sought a limited remand to develop a

claim of ineffective assistance against attorney Merrill for not arguing to the PCR

court that Wise was prejudiced by Hoffey’s omissions. Our supreme court denied

the remand and transferred the case to us.

II. Scope and Standards of Review

In general, we review PCR rulings for the correction of errors at law. Ruiz

v. State, 912 N.W.2d 435, 439 (Iowa 2018). But because Wise alleges ineffective

assistance of counsel, which implicates a constitutional right, we employ de novo
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review. See id. As for Wise’s right to effective assistance of PCR counsel, that

right is statutory and not constitutional, but we still apply de novo review. Lado v.

State, 804 N.W.2d 248, 250 (Iowa 2011).

III. Analysis

Wise alleges attorney Hoffey was ineffective in two ways: (1) allowing Wise

to choose a trial on the minutes without any strategic advantage and (2) “failing to

do anything other than beg for a plea offer.” Wise also contends attorney Merrill

was ineffective in his PCR representation by failing to argue that Hoffey’s

performance resulted in prejudice.

We analyze Wise’s claims under the familiar two-pronged test in Strickland,

466 U.S. at 687. On the first prong, we ask whether the attorneys performed within

the normal range of competency, starting from the presumption that they did. See

State v. Cromer, 765 N.W.2d 1, 7–8 (Iowa 2009). Wise must rebut that

presumption by showing counsel’s representation fell below an objective standard

of reasonableness. See State v. Lorenzo Baltazar, 935 N.W.2d 862, 868

(Iowa 2019). On the second prong, Wise must prove a reasonable probability

existed that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. See Strickland, 466 U.S. at 694. If Wise fails to prove

either element by a preponderance of the evidence, his claims fail. See Dempsey

v. State, 860 N.W.2d 860, 868 (Iowa 2015).

We turn first to Wise’s decision to be tried on the minutes of evidence. It’s

true that Hoffey did not point to any tactical advantage from choosing that option.

But the PCR court believed Hoffey’s assertion that Wise chose that course after
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hearing the other three options.1 We give weight to that finding on witness

credibility. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). And “[t]he

reasonableness of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions.” Strickland, 466 U.S.

at 691. Wise did not prove that allowing him to accept a trial on the minutes was

a material breach of counsel’s duty.

We next consider Wise’s claim that Hoffey should have done more than try

to solicit a plea offer from the prosecution. Wise suggests that Hoffey did not do

enough to investigate possible defenses. He contends Hoffey should have tried

to obtain video evidence to see if it aligned with statements in the police reports. 2

But, as Wise concedes, Hoffey limited his investigation because Wise did not

challenge the State’s allegations. In assessing claims of ineffective assistance of

counsel, we examine the defendant’s own conduct as well as that of his attorney.

State v. Rice, 543 N.W.2d 884, 888–89 (Iowa 1996). For three decades, our

appellate courts have advised: “When complaining about the adequacy of an

attorney’s representation, it is not enough to simply claim that counsel should have

done a better job.” See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Wise’s

complaints fall into that “not enough” category.

1 The State contends Wise did not preserve this argument because it differs
somewhat from what was raised at the PCR court. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). The State also notes that Wise raises a claim of
“per se” prejudice for the first time on appeal. We choose to bypass those
concerns and address the performance prong on the merits. See State v.
Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
2 Wise also maintains that the gun and stolen money were not in plain view when

police stopped his car. But he does not suggest the stop was unconstitutional.
And nothing in the record supports his allusion that a motion to suppress would
have had a reasonable probability of success.
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As for attorney Merrill’s performance, we need not decide whether his failure

to expressly argue Strickland prejudice breached a material duty. On this record,

we find that even the most vehement argument on prejudice would not have

carried the day. Wise cannot show that he was prejudiced by the alleged omission

in Merrill’s advocacy. Moore v. State, No. 22-0858, 2023 WL 8068487, at *4 (Iowa

Ct. App. Nov. 21, 2023) (rejecting claim of ineffective assistance of PCR counsel

because applicant could not prove the reasonable probability of a different

outcome).

AFFIRMED.