David Powell Jr. v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 24-1142 Filed August 6, 2025

DAVID POWELL JR., Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County,

Colleen Weiland, Judge.

A postconviction-relief applicant appeals the district court’s order denying

his application. AFFIRMED.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered without oral argument by Ahlers, P.J., and Badding and

Buller, JJ.  2

AHLERS, Presiding Judge.

David Powell, Jr. pleaded guilty to burglary in the third degree, received a

suspended five-year prison sentence, and was placed on probation. The State

later filed an application to revoke Powell’s probation based on allegations that

Powell had violated the terms of his probation in numerous ways.

A probation-revocation hearing was held on the reported violations. The

district court found that Powell violated numerous terms of probation, including

committing the crime of false imprisonment and five counts of violating a no-

contact order—all of which Powell pleaded guilty to having committed while on

probation. As a result, the court revoked his probation and imposed the previously

suspended prison sentence.

Powell filed an application for postconviction relief (PCR). He alleged

counsel in his probation-revocation proceedings was ineffective because counsel

did not meet with Powell before the probation-revocation hearing. The PCR court

denied the application, concluding that Powell had not met his burden to show he

was prejudiced by counsel’s performance.

Powell appeals. He contends the district court erred by denying his PCR

application even though he received ineffective assistance of probation-revocation

counsel. In the alternative, he contends that, if this court also finds that he failed

to prove that his probation-revocation counsel was ineffective, it is only because

of ineffective assistance of his PCR trial counsel.

I. Standard and Scope of Review

We typically review an order denying a PCR application for corrections of

errors at law. Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018). However,  3

because a claim of ineffective assistance of counsel raises a constitutional issue,

our review is de novo. Id.

To prevail on a claim of ineffective assistance of counsel, Powell must

establish that counsel failed to perform an essential duty and prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Both elements must be

proven, so it is not always necessary to address both. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001) (“If the claim lacks prejudice, it can be decided on

that ground alone without deciding whether the attorney performed deficiently.”).

II. Discussion

Like the district court, we will assume without deciding that Powell’s

probation-revocation counsel breached an essential duty by failing to meet with

Powell prior to the contested probation-revocation hearing and decide the issue on

the prejudice prong. As to the prejudice prong, Powell requests the adoption of a

bright-line rule that presumes prejudice when an attorney proceeds to a probation-

revocation hearing without first consulting with the client.

Powell cites no legal authority to support the adoption of such a bright-line

rule. A review of existing authority shows that our supreme court has only

presumed prejudice in limited and exceptional circumstances such as instances of

structural error. See, e.g., Krogmann, 914 N.W.2d at 324 (finding structural error

when the State unlawfully interfered with the defendant’s right to be “master of his

own defense” and counsel failed to object); Lado v. State, 804 N.W.2d 248, 253

(Iowa 2011) (finding structural error when the party was constructively without

counsel). Those circumstances do not exist here, so we do not presume prejudice  4

based on any existing authority.1 Powell bears the burden of establishing

prejudice. See State v. Doolin, 942 N.W.2d 500, 507 (Iowa 2020) (placing burden

on the claimant to prove prejudice).

The PCR court denied Powell’s application after concluding that, even if his

probation-revocation attorney had prepared more thoroughly, the outcome of the

probation-revocation hearing would not have changed. Powell argues that the

court’s reasoning failed to consider what additional evidence might have been

presented to change the outcome. But the court addressed this very same

argument in its explanation for denying relief on the prejudice prong:

Powell asserts that if he had the chance to prepare and produce additional evidence, the court would have given him time served in the county jail, i.e., a contempt penalty. But he did not offer much in the way of what the evidence would have been. That Powell had not had any significant violations in the one year and eight months prior was made known to the court. That he worked throughout much of his probation was also made known to the court. The court might not have known that Powell could have returned to that job, but it is purely speculative whether that factor would have outweighed the significant factors that supported revocation of probation, those being a conviction for false imprisonment while on probation and a guilty plea to five no contact order violations while on probation.

Despite the court’s findings, Powell again argues that if his probation-

revocation counsel had met with him before the hearing, counsel would have

learned that he previously succeeded in a halfway house and could return to his

1 Even if we were to consider whether to adopt the bright-line rule proposed by

Powell rather than relying on the supreme court to do so, we deny Powell’s invitation. Whether prejudice results from counsel’s alleged failure to perform an essential duty is a case-specific, fact-intensive inquiry not amenable to a brightline rule. While meeting with the client in advance of a probation-revocation hearing may certainly be the best practice, we can imagine scenarios in which failure to do so does not result in a less favorable outcome.  5

employment. He maintains that this evidence would have supported a disposition

other than imposition of the original sentence. Yet, the record shows that counsel

did present the information and arguments Powell claims would have changed the

outcome. Counsel cross-examined the probation officer, highlighted Powell’s prior

compliance with probation, and informed the court of Powell’s employment history

and the employer’s willingness to rehire him.

Nevertheless, Powell asserts that had counsel prepared adequately he

could have identified additional witnesses or documents for the court’s

consideration. He speculates that evidence from family, friends, a previous

probation officer, or coworker could have offered the court a better understanding

of his circumstances. Powell also suggests that counsel could have presented

documentation of passed drug tests or provided clarity regarding the charges he

was facing and those to which he pleaded guilty while on probation. But again,

Powell fails to identify with any specificity what this proposed evidence would have

been or how it could have altered the outcome. Speculation is not sufficient to

establish prejudice. See Trickel v. State, No. 19-1656, 2021 WL 616147, at

(Iowa Ct. App. Feb. 17, 2021). Under Strickland v. Washington, a defendant must

“show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 466 U.S. at 694.

Following our de novo review, we agree with the district court that Powell has not

met that burden.

Powell alternatively argues that his failure to establish prejudice is the result

of his PCR trial counsel’s ineffectiveness in failing to present the evidence Powell  6

claims should have been introduced.2 But the record is inadequate to address

Powell’s claim of ineffective assistance of PCR trial counsel at this stage. See

Freese v. State, No. 23-0139, 2024 WL 2842312, at (Iowa Ct. App. June 5,

2024) (refusing to address a claim of ineffective assistance of PCR trial counsel

for the first time on appeal after noting that the record does not answer the

questions, “Is the lack of evidence supporting Freese’s claims a result of some

failure by PCR [trial] counsel? Or is it because no such evidence exists?”). As

such, the proper procedure for resolving Powell’s claim of ineffective assistance of

PCR trial counsel is to file a separate PCR application in the district court. See

Goode, 920 N.W.2d at 526–27.

III. Conclusion

For these reasons, we affirm the PCR court’s denial of Powell’s application.

AFFIRMED.

2 There is an exception to our rules of error preservation when a PCR applicant

claims that PCR trial counsel provided ineffective assistance. Goode v. State, 920 N.W.2d 520, 526 (Iowa 2018). But we may only address those claims when the record below is sufficient to do so. Id.