Gatbel Thouk Chany v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-0046
Filed November 30, 2020

GATBEL THOUK CHANY,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

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

Judge.

Gatbel Chany appeals the dismissal of his application for postconviction

relief. AFFIRMED.

Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for

appellant.

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

General, for appellee State.

Considered by Mullins, P.J., Schumacher, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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VOGEL, Senior Judge.

Gatbel Chany appeals the district court’s dismissal of his second application

for postconviction relief (PCR).1 Because his claim was not raised or ruled on in

the district court, it is not preserved for appeal.

In July 2009, Chany pled guilty to ongoing criminal conduct, in violation of

Iowa Code section 706A.4 (2007), and three counts of second-degree robbery, in

violation of Iowa Code section 711.3. He was sentenced to indeterminate terms

of imprisonment not to exceed twenty-five years on the ongoing-criminal-conduct

conviction and ten years on each of the robbery convictions, with the twenty-five-

year term and one ten-year term to be served consecutively to each other. This

court affirmed his sentences on direct appeal. State v. Chany, No. 09-1302, 2010

WL 1375351, at *2 (Iowa Ct. App. Apr. 8, 2010). In 2014, our supreme court

decided State v. Lyle, 854 N.W.2d 378, 402–04 (Iowa 2014), which held mandatory

minimum sentences for juveniles are unconstitutional without an individualized

assessment by the district court. Because Chany was a juvenile—age

seventeen—when he committed the crimes, he filed a motion to correct illegal

sentence. On January 23, 2015, a resentencing hearing was held, after which the

district court denied Chany’s motion, upholding the originally imposed sentence.

This court affirmed. State v. Chany, No. 15-0340, 2016 WL 1705160, at *2 (Iowa

Ct. App. Apr. 27, 2016).

1
Chany’s first PCR application—unrelated to this appeal—was dismissed by the
district court. This court affirmed, finding his argument had no basis in law or fact.
See Chany v. State, No. 12-0590, 2013 WL 5760683, at *1 (Iowa Ct. App. Oct. 23,
2013).
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On September 6, 2017, Chany filed a subsequent PCR application,

asserting ineffective assistance of his counsel at the resentencing hearing. The

thrust of PCR counsel’s argument at the November 15, 2018 hearing was that

resentencing counsel did not object to the lack of an updated presentence

investigation report (PSI) or aggressively argue the Lyle factors to persuade the

court to impose a lesser sentence. PCR counsel did cite to State v. Roby, 897

N.W.2d 127, 145–48 (Iowa 2017), which gave courts additional “guidance” in

applying the Lyle factors. The State argued that the Lyle factors had been

presented, considered, and decided adversely to Chany, and that decision was

reviewed and affirmed by this court. The PCR court agreed with the State and

found Chany’s resentencing counsel “could not have been ineffective in failing to

anticipate Roby a year or more in advance of” the resentencing ruling. The court

also quoted State v. Effler, 769 N.W.2d 880, 889 (Iowa 2009), in finding “an

attorney need not be a ‘crystal gazer’ who can predict future changes in

established rules of law in order to provide effective assistance to a criminal

defendant.” The PCR court similarly rejected Chany’s argument regarding an

updated PSI—citing State v. Hopkins, 860 N.W.2d 550, 556 (Iowa 2015)—in

finding such an updated report “is neither statutorily required nor prohibited on

resentencing.” Furthermore, the court found the Iowa Department of Corrections

filled in the gap between sentencing and resentencing by providing a report

“outlining the positives and negatives in [Chany’s] life while in custody. It is unclear

what more would have been forthcoming had an updated PSI actually been

prepared.” In addition, the court found Chany’s own testimony at the PCR hearing

“mirrored the information already presented to the resentencing court, which
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focused on his family history and his subpar performance while incarcerated.”

Chany appeals.

We review ineffective-assistance-of-counsel claims de novo. Lamasters v.

State, 821 N.W.2d 856, 862 (Iowa 2012). To prevail, the applicant “must establish

counsel breached a duty and prejudice resulted.” Id. at 866 (quoting Castro v.

State, 795 N.W.2d 789, 794 (Iowa 2011)).

Chany asserts the PCR court should have found his resentencing counsel

was ineffective for not following the sentencing protocol identified in the later filed

decision in Roby. As noted above, the PCR court struck this argument down, ruling

his resentencing counsel need not be a “crystal gazer.” But Chany now adds a

new prong to his argument, namely that his resentencing counsel “breached an

essential duty by failing to present mitigating evidence in the form of expert

testimony pertaining to the Lyle factors.” As the State correctly notes, this new

prong was not litigated or ruled on by the PCR court and is not preserved for our

review. See Lamasters, 821 N.W.2d at 862 (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.” (quoting Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002))).

The only possible reference that might save Chany’s repackaged argument

occurred during the PCR hearing, when Chany’s PCR counsel asked him, “[D]id

[resentencing counsel] call any expert witnesses at the time of your hearing?”

Chany answered, “No, no expert witnesses were called.” PCR counsel also

alluded to expert testimony in closing argument, asserting “expert testimony is

probably a good idea to establish those [Lyle] factors.” Chany and his counsel did
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not otherwise develop an expert-testimony argument in any way during the PCR

hearing for the court to address or rule on. Accordingly, the PCR court’s only

reference to expert testimony came when it found Chany failed to show prejudice

resulted from the lack of an updated PSI:

Even assuming a breach of such a duty was established, it
remains incumbent upon the applicant to establish prejudice. As
noted earlier, this would require the applicant to establish a
probability of a different result sufficient to undermine confidence in
the outcome of the proceeding. Conclusory or self-serving claims of
prejudice are insufficient to establish this element. Again, the
applicant has offered nothing on this element beyond a repackaging
of his testimony from the resentencing hearing . . . . As noted earlier,
prejudice is not to be presumed—it must be established. The
applicant has offered no new evidence, lay, expert or empirical, that
even suggests that he would be a viable candidate for the elimination
of his mandatory minimum sentence. As a result, his claim of
ineffective assistance fails for lack of proof on the required element
of prejudice.

(Emphasis added, and citations and footnote omitted.) On our de novo review of

the transcript, we agree with the State that such a brief reference by the PCR court,

without any facts, argument, or citation to authority to what Chany now claims was

an issue in the court, does not show the claim was litigated before and decided by

the PCR court to preserve the claim for our review. See Lamasters, 821 N.W.2d

at 864 (“Meier distinguishes between the situation where error was preserved even

though ‘the record or ruling on appeal contains incomplete findings or conclusions,’

641 N.W.2d at 539, and the situation where the issue was ‘not considered by’ the

district court and thus error was not preserved, id. at 540.”).

Chany also asserts the decision in Roby should be applied retroactively.

But as the State notes, the predicate for us to do so would be for us to find the
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PCR court’s ruling was wrong. We have declined to do so. Because that ruling

stands, we do not reach whether Roby should be applied retroactively.

AFFIRMED.