Richard Kent Graw v. State of Iowa

                   IN THE COURT OF APPEALS OF IOWA

                                   No. 21-1912
                            Filed December 21, 2022


RICHARD KENT GRAW,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, John R. Flynn,

Judge.



      Richard Kent Graw appeals the dismissal of his application for

postconviction relief. AFFIRMED.




      Thomas M. McIntee, Williamsburg, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.



      Considered by Bower, C.J., Chicchelly, J., and Scott, S.J.*

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

(2022).
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SCOTT, Senior Judge.

       Richard Kent Graw appeals the dismissal of his application for

postconviction relief (PCR). We affirm.

       The district court has fully outlined the background facts. In summary, Graw

pleaded guilty in 2017 to second-degree burglary, stalking while subject to a

protective order, and tampering with a witness. He was sentenced to consecutive

terms of imprisonment totaling seventeen years. This court affirmed the sentences

imposed. See State v. Graw, No. 17-0767, 

, at *1 (Iowa Ct. App.

Jan. 10, 2018). In January 2019, the sentencing court reconsidered, suspended

Graw’s sentences, and placed him on supervised probation for five years. In May

2020, the district court granted an application for probation revocation, finding

Graw had violated several conditions of probation and ordered Graw back to prison

to serve the remainder of the original sentences.

       Graw then filed a PCR application in which he alleged his plea attorney

failed to adequately investigate the underlying criminal case and coerced him into

pleading guilty. Graw also asserted he is actually innocent of second-degree

burglary, maintaining he had ongoing permission to be in the home of the sister of

the protected party and that he did not enter with the knowledge the protected party

was present nor did he intend to commit an assault.

       The PCR court held a hearing at which Graw testified, as did the sister of

the protected party, and Graw’s plea counsel. The PCR court found Graw’s

testimony that he was forced to accept the pleas was directly contradicted by the

plea transcript, which showed his pleas were knowingly and voluntarily entered.

The PCR court observed Graw acknowledged he never indicated to the plea court
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in any way that he was not happy with his attorney or that his attorney forced him

to plead guilty:

       The court did not find Graw’s testimony credible. The court finds that
       Graw’s sworn testimony has taken a complete 360-degree reversal
       relative to what he told Judge Ellefson regarding Attorney Jones back
       in March of 2017 compared to his testimony at his post-conviction
       hearing. The court notes that the testimony in both cases was under
       oath. The court also recognizes, of course, that Mr. Graw has every
       reason to now lie and change his story due to his incarceration. The
       Court simply finds his testimony not credible. This finding makes it
       very difficult to believe Graw’s testimony in any respect.

       The court also specifically found the sister’s testimony that she had allowed

Graw to be in her house was not credible.          The court found the sister was

“sympathetic and biased towards Graw” and “she feels bad that he is in prison and,

in her opinion, it’s unjust that he is there.”

       The PCR court found plea counsel’s “performance was well within the range

of normal competency,” outlining the attorney’s pretrial investigation included

written discovery, the assistance of an investigator, and conducting a number of

depositions. The court concluded Graw failed in his burden to prove either a

breach of essential duty or resulting prejudice.

       Finally, the PCR court rejected Graw’s claim of actual innocence to the

charge of second-degree burglary:

               The minutes of testimony, deposition transcripts as
       represented by [prosecutor] at the guilty plea hearing and the fact
       that Graw himself agreed when asked about the information
       contained in both support this finding. This certainly applies to the
       issue of intent to commit an assault. . . . [T]his court agrees, that
       because of the no-contact order, Graw had no right to enter [the
       sister’s home] regardless of any permission allegedly given by [her],
       as he knew [the protected party] was present. Graw had no legal
       right to be at [the sister’s] house that day. Graw himself admitted to
       law enforcement and his own attorney that he knew [the protected
       party] was present. He also arrived at [the] house wearing a wig,
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       blue jacket, and glasses. His testimony that he didn’t really know
       [the protected party] was present is simply not credible.

The court found the minutes of testimony, the protected party’s deposition

testimony, and Graw’s own statements support a finding that he entered the

residence with an intent to commit an assault.

       On our de novo review,1 we conclude the court properly applied the law.

And giving weight to the court’s findings, especially as to witness credibility,2 we

conclude Graw has failed to prove either that plea counsel was ineffective3 or his

claim of actual innocence.4 Further opinion will not augment or clarify existing case

law. See Iowa Ct. R. 21.26 (1)(e). We affirm.

       AFFIRMED.




1  Ledezma v. State, 

 (Iowa 2021) (“We typically review
postconviction relief proceedings on error. However, when the applicant asserts
claims of a constitutional nature, our review is de novo.” (citation omitted)).
2 See 

3 

 (“To prevail on a claim of ineffective assistance of counsel, the applicant

must demonstrate both ineffective assistance and prejudice.”).
4 See Schmidt v. State, 

 (Iowa 2018) (“For an applicant to

succeed on a freestanding actual-innocence claim, the applicant must show by
clear and convincing evidence that, despite the evidence of guilt supporting the
conviction, no reasonable fact finder could convict the applicant of the crimes for
which the sentencing court found the applicant guilty in light of all the evidence,
including the newly discovered evidence.”).