Demarkus Wayne Ruckman v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1023
Filed March 3, 2021

DEMARKUS WAYNE RUCKMAN,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

The applicant appeals the denial of his second application for postconviction

relief. AFFIRMED.

William P. Baresel of Prichard Law Office, PC, Charles City, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee State.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

Demarkus Ruckman appeals the denial of his second application for

postconviction relief (PCR) stemming from a 2013 guilty plea and conviction for

third-degree kidnapping and assault with intent to commit sexual abuse. Ruckman

makes claims under the umbrella of ineffective assistance of counsel. Ruckman

argues trial counsel failed to ensure the district court addressed or informed

Ruckman of various aspects of his guilty plea during the colloquy: (1) criminal

penalty surcharges under Iowa Code section 911.1 (2013); (2) fees relating to the

sex offender registry1; and (3) his right to a bench trial under Iowa Rule of Criminal

Procedure 2.8(2)(b)(4). Next, Ruckman faults his trial counsel for failing to

challenge the court’s decision to allow the State prosecutor to recite the minimum

and maximum punishments available at sentencing during the plea colloquy.

Ruckman further asserts the district court failed to explain its reasoning for

imposing consecutive sentences, as required by rule 2.22(3)(d) and trial counsel

should have argued for them to run concurrently. Ruckman also requests we apply

a new constitutional standard related to his plea complaints. And finally, he faults

his previous PCR counsel for failing to make the arguments asserted in this appeal

at the first PCR trial.

Factual Background and Earlier Proceedings.

Ruckman was originally charged with second-degree sexual abuse,2 a class

“B” felony, in April 2013. Pursuant to a plea agreement, the State reduced the

1 Ruckman knew he had to register as a sex offender pursuant to his plea
agreement but claims he was not informed of the related fees.
2 Iowa Code § 709.3 (2013).
3

charges to third-degree kidnapping,3 a class “C” felony, and assault with intent to

commit sexual abuse,4 an aggravated misdemeanor. After accepting Ruckman’s

guilty pleas, the district court sentenced him to a ten-year prison term for the

kidnapping charge and a two-year term for assault with intent to commit sexual

abuse, both sentences to run consecutively. However, the court suspended both

sentences and placed Ruckman on probation for a period of five years, conditioned

on placement at Fort Des Moines Correctional Facility. The court also imposed a

special sentence of ten-year parole, imposed and suspended the minimum fines

with surcharges, and ordered Ruckman to pay the civil penalty for the sex offender

registry.

Later, in May 2014, Ruckman’s probation was revoked and the court

imposed the suspended prison sentence. Ruckman’s first application for PCR

followed in March 2015, alleging trial counsel “coerced and misled” him into

pleading guilty. Ruckman v. State, No. 16-1029, 2017 WL 2684344, at *1 (Iowa

Ct. App. June 21, 2017). His application was denied after an evidentiary hearing

in May 2016.

In August 2017, Ruckman filed this second PCR application, raising eight

claims of ineffective assistance of trial counsel and two claims of ineffective

assistance of PCR counsel. The central theme of all claims involved the plea

process. The district court denied all claims in June 2019, after evaluating the

testimony and arguments from the hearing. This appeal followed.

3 Iowa Code § 710.4.
4 Iowa Code § 709.11(3).
4

Standard of Review.

“Generally, an appeal from a denial of an application for postconviction relief

is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750

(Iowa 2016) (citation omitted). However, because ineffective-assistance-of-

counsel claims are based on the constitutional guarantees of the effective

assistance of counsel found in the Sixth Amendment of the United States

Constitution and article I, section 10 of the Iowa Constitution, such claims are

reviewed de novo. Id. We now address Ruckman’s claims.

Analysis.

At the onset, Ruckman now raises five claims of ineffective assistance of

his trial counsel and a claim of ineffective assistance against his PCR counsel. All

claims again relate to issues with the plea. “[T]o succeed on a claim of ineffective

assistance of counsel, [an applicant] must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195

(Iowa 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “‘We

begin with the presumption that the attorney performed competently’ and ‘avoid

second-guessing and hindsight.’” State v. Brubaker, 805 N.W.2d 164, 171 (Iowa

2011) (citation omitted). The applicant must prove both elements by a

preponderance of the evidence; if the applicant fails to prove one of the elements

the claim fails and we need not address the other. Ledzema v. State, 626 N.W.2d

134, 143 (Iowa 2001).

To show prejudice, “the applicant must demonstrate ‘that there is a

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

the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at
5

694). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 698. “In the context of a guilty plea, an

applicant for postconviction relief must prove ‘a reasonable probability that, but for

counsel’s alleged errors, he [or she] would not have plead guilty and would have

insisted on going to trial.’” State v. Carrol, 767 N.W.2d 638, 641 (Iowa 2009)

(alteration in original) (citation omitted)). “Under Iowa law, we should look to the

cumulative effect of counsel’s errors to determine whether the defendant satisfied

the prejudice prong of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500

(Iowa 2012).

A. Ineffective Assistance of Trial Counsel.

We start with Ruckman’s claims against his trial counsel.5 Like his first

application for PCR, Ruckman’s complaints center on the alleged uninformed

nature of his plea. Thus, a review of our findings from Ruckman’s first appeal

regarding denial of PCR is appropriate. Addressing the voluntariness of the plea,

a panel of our court confirmed

Ruckman’s attorney acted competently in apprising Ruckman of
“what we believe the facts will be at trial” and “the risks and the
benefits” of pleading guilty. On our de novo review, we find scant if
any evidence that she coerced Ruckman into entering a guilty plea
to third-degree kidnapping and assault with intent to commit sexual
abuse in lieu of going to trial on a charge of second-degree sexual
abuse. To the contrary, she gave Ruckman all the information he
needed to make an informed decision about whether to go to trial or
accept the plea offer. Ruckman accepted the offer and, in the

5 Ruckman argues trial counsel failed to: (1) ensure the court addressed the
criminal penalty surcharges and sex offender registration fees; (2) require the
court, rather than the State to recited the minimum and maximum punishments;
(3) argue for concurrent sentences and require the court to explain the differences
between consecutive and concurrent; (4) inform him of his right to a bench trial
and (5) challenge the court’s reasoning for imposing consecutive sentences.
6

attorney’s recollection, “never” expressed a desire “to back out of the
deal.”

Ruckman, No. 16-1029, 2017 WL 2684344, at *2 (emphasis added). So to the

extent Ruckman alleges he did not understand his plea due to failures of trial

counsel, we apply the law of the case and confirm he had “all information he

needed to make an informed decision” between his plea and going to trial. See

State v. Di Paglia, 78 N.W.2d 472, 472-73 (Iowa 1956) (finding “matters

necessarily involved in the determination of a question are settled by the opinion

when such matters are again presented on a subsequent appeal”).

Throughout Ruckman’s brief, he lists multiple claimed deficiencies of trial

counsel, but even after examining all claims both individually and cumulatively, we

conclude Ruckman failed to establish the prejudice prong of Strickland. So we

chose to decide the case under the second Strickland prong analysis. Under the

prejudice prong, Ruckman must prove a reasonable probability that, but for trial

counsel’s alleged failures, he we would have insisted on going to trial. 6 Castro v.

State, 795 N.W.2d 789, 794 (Iowa 2011). The probability of a different result must

6In the second PCR hearing Ruckman demonstrated a clear understanding of the
benefits of his plea, contrary to the claims he presents in this appeal:
Q. All right. And so the prosecutor ended up giving you an
offer that would allow you to argue for probation; right? A. Yes.
Q. They said that if you plead to kidnapping third and assault
with intent, that you could—or that the sentences would run
consecutive but that you could ask for probation; right? A. Yes.
Q. That was the deal that you reached with the State; right?
A. Yes.
Q. And you ultimately did receive probation by the Court;
right? A. Yes.
Q. So it seemed like a pretty good outcome at the time, didn't
it? A. Yes.
7

be “‘sufficient to undermine confidence in the outcome.’” Anfinson v. State, 758

N.W.2d 496, 499 (Iowa 2008) (quoting State v. Reynolds, 746 N.W.2d 837, 845

(Iowa 2008).

Other than a conclusory statement in his reply brief7 that “Defendant

believes he was prejudiced and that he would not have plead guilty knowing the

consequence of his plea,” Ruckman does not explain how any of trial counsel’s

alleged errors resulted in prejudice. See State v. Tate, 710 N.W.2d 237, 241 (Iowa

2006) (“‘[C]onclusory claims of prejudice’ are not sufficient to satisfy the prejudice

element.”). So although Ruckman raised the Strickland test, he did little more than

mention it. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (holding

appellate courts will not speculate on arguments a party “might have made and

then search for legal authority and comb the record for facts to support such

arguments”). Without this showing, Ruckman cannot succeed. “The court always

has the option to decide the claim on the prejudice prong of the Strickland test,

without deciding whether the attorney performed deficiently.” Dempsey v. State,

860 N.W.2d 860, 868 (Iowa 2015) (citation omitted).

On this record, trial counsel secured Ruckman a favorable plea deal and

convinced the court to suspend both sentences and order a term of probation

rather than imprisonment. She did this in compliance with the terms of the plea

agreement to which Ruckman agreed. Because on its face, no prejudice is shown

and without a developed argument from Ruckman about how he was prejudiced,

his claims against trial counsel fail. Even after drilling into the PCR hearing record,

7 “We have repeatedly held we will not consider issues raised for the first time in a
reply brief.” State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009) (citations omitted).
8

Ruckman directed the court to his attorney’s recommendation to plead guilty

versus his belief in his innocence, as opposed to a showing of objective evidence

of prejudice from his current complaints. Thus, his testimony sounded strikingly

similar to his position in the first PCR trial that he was “coerced” into pleading guilty

by counsel. We have already addressed that angle. Ruckman’s Strickland burden

was not met.

B. Ineffective Assistance of PCR Counsel.

Ruckman asks us to adopt a “new constitutional standard presuming

prejudice.” He frames the standard by suggesting that “considering the argument

in Weitzel, [we] . . . should assume prejudice if prior counsel fails to assure court

compliance with Iowa R. Crim. P. 2.8 and fails to advise their client of an essential

fact to his plea, undermining the knowing, intelligent, and voluntary nature of the

plea.” We decline the invitation to go rogue and leave that suggestion for the

consideration of our supreme court. Besides, Ruckman did not raise this issue

before the district court. As a general rule, “[i]ssues not raised before the district

court, including constitutional issues, cannot be raised for the first time on appeal.”

State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997).

As with the claims asserted against trial counsel, Ruckman failed to meet

the Strickland test as to PCR counsel.

Conclusion.

Because Ruckman failed to show by a preponderance of the evidence any

prejudice under the Strickland test, we affirm the denial of his second application

for postconviction relief.

AFFIRMED.