Dante Kwan Rhodes v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0229
Filed March 2, 2022

DANTE KWAN RHODES,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.

The applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Martha Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

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

GREER, Judge.

Dante Rhodes appeals the denial of his application for postconviction relief

(PCR) following his conviction for two counts of delivery of a controlled substance

(heroin). As he did at the district court, Rhodes contends he is entitled to relief

because he received ineffective assistance from trial counsel. Specifically,

Rhodes maintains his trial counsel breached an essential duty that resulted in

prejudice to Rhodes by failing to move (1) for dismissal of the underlying criminal

charges because the statute of limitations had lapsed and (2) for suppression of

evidence obtained during the execution of a search warrant that was not supported

by probable cause.

I. Background Facts and Proceedings.

In December 2010, the State filed a criminal complaint against Rhodes for

two counts of delivery of heroin that were alleged to have occurred on April 12,

2010. A warrant issued for Rhodes’s arrest the same day, but he was not

apprehended until police in Wisconsin arrested him on unrelated charges in March

2014 and then, after the Wisconsin charges were resolved, the Wisconsin police

delivered Rhodes to Iowa law enforcement on April 1, 2014.

The State filed the trial information charging Rhodes with twice delivering

heroin in violation of Iowa Code section 124.401(1)(c)(1) (2009), a class “C” felony,

on May 16, 2014—more than four years after the alleged offenses.
3

In December 2016,1 Rhodes entered Alford guilty pleas2 to both charges

pursuant to a plea agreement he entered into with the State. As part of the

agreement, the State recommended Rhodes be given two suspended ten-year

sentences, which would run concurrently if his probation was revoked in the future.

The court followed the joint recommendation in sentencing Rhodes, and he was

placed on probation for two to five years.

One month after he was sentenced, on March 9, 2017, the State filed a

report of probation violation after Rhodes was arrested on new charges.

On March 29, with the probation revocation pending, Rhodes filed a pro se

notice of appeal, stating he wanted to challenge his convictions and sentences. A

three-judge panel of the Iowa Supreme Court concluded his appeal was untimely

and dismissed it.

Rhodes eventually stipulated to the revocation of his probation3 and the

court imposed the original concurrent, ten-year sentences.

Rhodes filed a pro se application for PCR in May 2018. He was appointed

counsel and later filed an amended application.

1 The delay was caused by Rhodes’s failure to appear for trial on the charges in
2015. Another warrant for his arrest was issued, and he was not apprehended
until October 2016.
2 North Carolina v. Alford, 400 U.S. 25, 37–38 (1970) (allowing a defendant to

plead guilty to a charge even if they are “unwilling or unable to admit [their]
participation in the acts constituting the crime”).
3 This was part of a plea agreement; a number of other charges against Rhodes

were dismissed as part of the agreement, and he was allowed to serve time for a
federal sentence concurrently with his state sentences.
4

The PCR trial was scheduled to take place in March 2020. By agreement

of the parties, the case was submitted to the district court without live testimony; it

was decided on the written depositions, exhibits, and trial briefs.

In February 2021, the district court concluded Rhodes failed to prove his

trial counsel provided ineffective assistance and denied Rhodes’s application. The

court found Rhodes’s testimony he lived in Iowa from 2010 until 2014 “to be not

credible.” Alternatively, the court also noted that even if there was some evidence

to support Rhodes’s claim he lived in Iowa throughout (meaning there was

“arguably merit” to the claim counsel should have filed a motion to dismiss), filing

a motion to dismiss was not guaranteed to get the charges dismissed; and filing

the motion likely would have jeopardized the trial attorney’s ability to get Rhodes

such a favorable plea agreement—suspended, concurrent sentences even after

Rhodes absconded from 2015 to 2016. As to his second ineffective-assistance

claim, the court concluded there were sufficient facts to establish probable cause

for the search warrant, so a motion to suppress would have been unsuccessful.

Rhodes appeals.

II. Standard of Review.

While the denial of a PCR application is generally reviewed for correction of

errors at law, we engage in de novo review when the applicant’s claims are

constitutional in nature. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011). The

right to effective assistance of trial counsel is constitutional, so we review Rhodes’s

claims de novo. See State v. Lorenzo Baltazar, 935 N.W.2d 862, 868 (Iowa 2019)

(“The Sixth Amendment to the United States Constitution and article I, section 10

of the Iowa Constitution guarantee the right to ‘effective’ assistance of counsel.”).
5

III. Discussion.

Rhodes maintains he received ineffective assistance from trial counsel.

“[A]ll [PCR] applicants who seek relief as a consequence of ineffective assistance

of counsel must establish counsel breached a duty and prejudice resulted.” Castro

v. State, 795 N.W.2d 789, 794 (Iowa 2011). To prove breach of essential duty,

Rhodes has the burden to prove “his trial attorney performed below the standard

demanded of a ‘reasonably competent attorney.’” Lamasters v. State, 821 N.W.2d

856, 866 (Iowa 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687

(1984)). We presume “the attorney performed competently and proceed to an

individualized fact-based analysis.” Id. We are more likely to find counsel

breached his or her duty “when the alleged actions or inactions of counsel are

attributed to a lack of diligence as opposed to the exercise of judgment.” Id. We

will not second guess “counsel’s reasonable tactical decision[s].” Id. To prove

prejudice, Rhodes must demonstrate “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A showing that the error ‘conceivably could

have influenced the outcome’ of the proceeding is not enough.” Lamasters, 821

N.W.2d at 866 (quoting Strickland, 466 U.S. at 693). Importantly, “[w]e may affirm

the district court’s rejection of an ineffective-assistance-of-counsel claim if either

element is lacking.” Id. (citation omitted).

A. Statute of Limitations.

Except for some charges not at issue here, the State generally must

prosecute a felony within three years after its commission. See Iowa Code § 802.3;

State v. Howard, 610 N.W.2d 535, 536 (Iowa Ct. App. 1999). But the statute of
6

limitations tolls during the time when the offender is “not publicly resident within

the state.” Iowa Code § 802.6(1) (“When a person leaves the state, the indictment

or information may be found within the time herein limited after the person’s coming

into the state, and no period during which the party charged was not publicly

resident within the state is a part of the limitation.”).

In his PCR action, Rhodes maintained he lived in Iowa from 2010—at the

time of the offenses—until 2014. Based on this assertion, he argues trial counsel

had a duty to file a motion to dismiss the underlying criminal charges because he

was charged outside the three-year statute of limitations. As Rhodes notes, if trial

counsel had filed the motion to dismiss, the State would have had the burden to

prove the statute of limitations had been suspended. See Howard, 610 N.W.2d at

536. In other words, it would have been the State’s burden to prove Rhodes was

not publicly resident in Iowa for more than thirteen months since the delivery of

heroin on April 12, 2010, so that the three-year statute of limitations had not lapsed

as of the May 16, 2014 filing of the trial informations.4 If the State could not do so,

the charges against Rhodes would have been dismissed, and he would not have

entered guilty pleas.

However, because this claim was brought under the ineffective-assistance

framework, Rhodes has the burden to prove a motion to dismiss would have been

successful. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (“We will

4 A little more than forty-nine months passed between the date of the offenses on
April 12, 2010, and the filing of the trial informations on May 16, 2014. And the
statute-of-limitations period ran any time Rhodes was publicly resident in Iowa.
So, to prove the informations were filed within the three-year window, the State
would have been required to prove Rhodes was not publicly resident in Iowa for
more than thirteen months between April 12, 2010, and May 16, 2014.
7

not find counsel incompetent for failing to pursue a meritless issue.”). So, to

succeed on his claim, Rhodes must prove he was publicly resident of Iowa for at

least three years between the date of the offenses and before he was charged by

trial information.

From our review of the limited case law on Iowa Code section 802.6, we

have found no definition or interpretation of what it means to be “publicly resident.”

Rhodes encourages us to conclude the statute of limitations requires “only . . . that

a person is living and present in Iowa, not that they establish and maintain a stable,

single household in the state for three years.” He points us to the lay definition of

resident: “Living in a place for some length of time.” Resident, Merriam-Webster,

https://www.merriam-webster.com/dictionary/resident (last visited Feb. 14, 2022).

And he argues for this broad definition so as not to “punish the most vulnerable of

people: those suffering from housing instability and indigency.” But this suggestion

ignores the modifier “publicly” before the word “resident” in section 802.6(1).

Because one must be “publicly resident” in the state for the statute of

limitations to run, we do not believe mere presence in the state is sufficient. See

Iowa Code § 802.6(1) (emphasis added); see also TLC Home Health Care, L.L.C.

v. Iowa Dep’t of Human Servs., 638 N.W.2d 708, 713 (Iowa 2002) (“It is a basic

rule of statutory construction that we must ‘give effect, if possible, to every clause

and word of a statute.’” (citation omitted)); cf. State v. Sher, 437 N.W.2d 878, 881

(Wis. 1989) (“[T]he time during which the actor was not publicly a resident within

the state is subtracted (e.g., he may have resided elsewhere, or in this state

secretly and in concealment).”). But even if we accept Rhodes’s proffered

definition, his claim of ineffective assistance for failure to file a motion to dismiss
8

cannot succeed because Rhodes failed to prove he lived in Iowa for at least three

years between the commission of the offenses and when he was charged by trial

information.5

In his PCR deposition, Rhodes testified his home was in Iowa from 2009

until 2014. That home was not a single, stable residence; he moved around with

his girlfriend Tiffany between Dubuque and Ottumwa and also lived at Ken’s house

in Dubuque—Ken was “like a godfather” to him. But this testimony is at odds with

statements Rhodes made contemporaneous to his 2014 arrest and to the person

preparing the presentence investigation (PSI) report in 2017 following his guilty

pleas. On April 1, 2014, Rhodes told the investigator for the public defender’s

office that he lived in Dubuque from 2010 to 2012 but had lived in Milwaukee most

of his life. He also reported having a job in Milwaukee but stated that he “probably

lost” it due to being extradited and arrested. The notes on his prisoner booking

record say Rhodes planned to stay with Ken in Dubuque—“confirmed for 1

week”—suggesting Rhodes needed a place to stay after being extradited to Iowa

because he did not have a residence. Additionally, Rhodes told the PSI preparer

that he lived in Dubuque from approximately 2005 to 2010 and then lived in

5 Because we are not required to do so for this case, we decline to decide what
constitutes “publicly resident” within section 802.6(1).
Still, we note Rhodes did not have his own residence in Iowa, never
obtained an Iowa driver’s license, and never registered to vote in Iowa. In his
deposition for the PCR action, Rhodes testified he was “sure” he received mail in
Iowa between 2010 and 2014. But the only physical evidence of receiving mail
that Rhodes offered at the PCR hearing was an April 30, 2014 response to his
application for benefits from the Iowa Department of Human Services and a May
30, 2014 paystub. The former was sent before Rhodes was charged but after
Wisconsin extradited Rhodes to Iowa on April 1, 2014. And the latter was sent
both after the extradition and after Rhodes was charged; it has no evidentiary value
regarding where Rhodes lived during the pertinent time period.
9

Milwaukee, Wisconsin, from 2010 to 2016. While these two statements are at odds

with each other, neither support Rhodes’s testimony he lived in Iowa from 2009 to

2014. Additionally, Rhodes received a traffic ticket from Waukesha County police

(near Milwaukee) in November 2013. His ticket was due to having more than one

driver’s license. He had both a Wisconsin and an Arizona driver’s license—he

never obtained an Iowa license. And then, in March 2014, Rhodes was arrested

by Waukesha County police, who later extradited Rhodes to Iowa. Rhodes was

present near Milwaukee for both his November 2013 and March 2014

involvements with Wisconsin police, and the case details from each list Rhodes as

living at a Milwaukee address.

Rhodes’s mother and his cousin both testified by way of deposition in the

PCR action, and each testified as to their belief Rhodes lived in Iowa between 2010

and 2014. But Rhodes’s mother lived in Minnesota throughout, and neither his

mother nor his cousin ever actually visited Rhodes in Iowa. Each based their

testimony Rhodes was not living in the Milwaukee area on Rhodes’s statements

to them and their belief he would not be able to hide that from them or their family

who lived there. But when asked about Rhodes’s November 2013 arrest in

Waukesha County, his mother testified, “We weren’t surprised. We didn’t even

know he was—really didn’t know he was even . . . back in the city because

sometimes [Rhodes] would go in and out.” And his cousin was not aware Rhodes

was working in Milwaukee in 2014. Plus, both testified their family wanted Rhodes

to quit his “street life” and go to drug treatment, which Rhodes did not want to do—

giving Rhodes a reason to be less than forthcoming with his family if he was living

nearby.
10

We agree with the district court that Rhodes’s testimony he lived in Iowa

from 2009 to 2014 is not credible,6 and none of the other evidence he offered

established he lived in Iowa for three years during the pertinent time period.

Rhodes cannot prove a motion to dismiss would have had merit, so we cannot say

counsel had an essential duty to file the motion. This claim of ineffective

assistance fails.

B. Motion to Suppress.

Next, Rhodes claims his trial counsel had a duty to file a motion to suppress

the evidence obtained during the execution of the search warrant because the

warrant was not supported by probable cause.

“The existence of probable cause to search a particular area depends on

whether a person of reasonable prudence would believe that evidence of a crime

might be located of the premises of the area searched.” State v. Davis, 679

N.W.2d 651, 656 (Iowa 2004). “The task of the judge issuing the search warrant

is ‘to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit’ presented to the judge, there is a fair

probability that law enforcement authorities will find evidence of a crime at a

particular place.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238–39 (1983)). “A

finding of probable cause depends on ‘a nexus between criminal activity, the things

to be seized and the place to be searched.’” Id. (citation omitted). In making that

6 See Shaffer v. State, No. 19-0950, 2021 WL 592914, at *6 n.6 (Iowa Ct. App.
Jan. 21, 2021) (applying a less deferential standard to the district court’s credibility
finding when “the district court had only a transcript of the deposition of the trial
attorney—not a live witness—and therefore had the same information we do when
determining credibility”). Here, the court reviewed only written testimony.
11

determination, the issuing court “may rely on reasonable, common-sense

inferences from the information presented.” Id.

In our review of the issuing court’s decision, “[w]e do not make an

independent determination of probable cause, but only determine whether the

basis existed for finding probable cause.” Id. In doing so, “we are limited to

consideration of only that information, reduced to writing, which the applicant

presented to the court at the time of the application for the warrant.” Id. But “we

draw all reasonable inferences to support a court’s finding of probable cause” and

“[c]lose questions are resolved in favor of the validation of the warrant.” Id.

The PCR court found there was a basis for finding probable cause to

support the warrant, stating:

The application established that the affiant, Investigator John
Jason Pace of the Dubuque Police Department, had, at that time,
nine years of experience as a patrolman and two and a half years of
experience working with the Dubuque Drug Task Force. Through
that experience, he had come to understand a significant number of
things about the manufacture and sale of illegal drugs.
On April 12, 2010, Andrew Beeler met with Pace and told him
he had been purchasing heroin from a Black male who was bald and
in his 30’s or 40’s and went by the name of Dante. The Task Force
then surveilled Beeler, who parked his vehicle on Center Place (a
Dubuque street). Pace approached Beeler and told him he knew he
had just purchased heroin. Beeler gave Pace a package of heroin
and a syringe. Beeler told Pace that he had entered “‘Dante’s’ and
Tiffany’s residence on Center Place to retrieve the heroin.” He also
said that Dante had just gotten back into town with more heroin to
sell. The “residence” Beeler was referring to was determined to be
1122 Center Place, Apt. 5 in Dubuque. A records check revealed
that it was the residence of Tiffany Jackson.
....
The information provided by Beeler was more than enough to
establish probable cause. He gave a general description of Rhodes
and identified him by his first name. He gave a personal account of
obtaining heroin from Rhodes after being seen in an area of a
residence where it was later determined that Rhodes was present.
He knew the owner of the residence to be named Tiffany, which was
12

corroborated by a police records search. He provided the police with
the heroin he had obtained from Rhodes.
Rhodes argues that that search warrant contained no
information establishing that Beeler was credible. However, the facts
set forth in the application make it clear that the information was
corroborated.

On appeal, Rhodes complains the court should have viewed Beeler’s information

with more skepticism, suggesting Beeler was only cooperating with police for

selfish reasons. See State v. Weir, 414 N.W.2d 327, 331 (Iowa 1987) (“Courts

have generally applied higher standards of proof when weighing the reliability of

tipsters who act for money, leniency or some other selfish purpose than when

considering the reliability of the citizen informer whose only motive is to help law

officers in the suppression of crime.”). But, as the State argues, nothing in the

record before us establishes Beeler was helping the police for selfish purposes,

and the warrant application does not treat him as a confidential informant. See

Iowa Code § 808.3 (“[I]f the grounds for issuance [of the search warrant] are

supplied by an informant, the magistrate shall identify only the peace officer to

whom the information was given. The application or sworn testimony supplied in

support of the application must establish the credibility of the informant or the

credibility of the information given by the informant.”); see also Weir, 414 N.W.2d

at 331 (concluding “the ‘specified reasons’ requirement of section 808.3 was

intended by the legislature to apply only when the informant is not named in the

application and accompanying affidavits”).

However, if we were to treat Beeler as an informant who had something to

gain by providing information to the police, we would consider these factors to

determine whether the information provided by him was sufficiently reliable:
13

(1) “whether the informant was named”; (2) “the specificity of [the]
facts detailed by the informant”; (3) “whether the information
furnished was against the informant's penal interest”; (4) “whether
the information was corroborated” by other information known to law
enforcement; (5) “whether the information was not public
knowledge”; (6) “whether the informant was trusted by the accused”;
and (7) “whether the informant directly witnessed the crime or fruits
of it in the possession of the accused.”

State v. McNeal, 867 N.W.2d 91, 102–03 (Iowa 2015) (quoting Weir, 414 N.W.2d

at 332).

Beeler was named; he provided a physical description of Rhodes and knew

it was Tiffany’s home that he had visited. Beeler admitted buying heroin to the

officer. Police officers were able to corroborate the owner of the home matched

the name given by Beeler, were handed the drugs and syringe Beeler had just

purchased, and saw him leave the area from which he purported to buy the drugs.

Most of the factors are met, and we conclude Beeler’s information was sufficiently

reliable for the district court to rely on it in finding probable cause to support the

warrant. Because there is a basis for the district court’s issuance of the warrant,

a motion to suppress would not have been successful. So Rhodes failed to prove

his counsel breached a duty in not filing a motion to suppress, and this claim of

ineffective assistance fails.

IV. Conclusion.

Like the district court, we conclude Rhodes’s claims of ineffective

assistance of trial counsel fail. We affirm the denial of his application for PCR.

AFFIRMED.