Andre Letroy Antwan Harrington v. State of Iowa

                    IN THE COURT OF APPEALS OF IOWA

                                      No. 22-1714
                               Filed December 20, 2023


ANDRE LETROY ANTWAN HARRINGTON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



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

AFFIRMED.




      Karmen R. Anderson, Des Moines, for appellant.

      Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney

General, for appellee State.



      Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.*

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

(2023).
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POTTERFIELD, Senior Judge.

       After being convicted of second-degree robbery,1 Andre Harrington applied

for postconviction relief (PCR), alleging he received ineffective assistance from

trial counsel.       The district court denied Harrington’s application.   On appeal,

Harrington reiterates his claims of ineffective assistance regarding trial counsel’s

failure to plead an affirmative defense and to object to his shackling in front of the

jury during trial.

I. Background Facts and Proceedings.

       In 2013, Harrington was charged with second-degree robbery. He pled not

guilty, and the case was tried to a jury.

       At trial, the State introduced evidence that Harrington entered a store with

the intention to steal a number of items. Video footage from the store’s security

cameras showed Harrington putting several items in a cart—$892 worth—before

pushing the cart out of the store without any attempt to stop and pay. Multiple

store employees approached Harrington as he exited the store, and Harrington

punched one—store manager Brian Drechney—in the face, causing him to fall to

the ground. Leaving the merchandise behind, Harrington fled the store on foot

before being apprehended by a police officer soon after. Harrington testified at

trial; he admitted he entered the store with the intent to take items without paying.

He also admitted to hitting2 Drechney, testifying he did so because he was grabbed


1 Harrington was sentenced as an habitual offender.
2 Specifically, when asked about punching Drechney, Harrington testified:

             It wasn’t a punch. It was more of a muff, if you could see it, I
       mean. If you look at the camera, it’s obvious to say that—I mean, he
       was down to the ground, so you don’t really know whether or not it
       was a punch or a muff. . . . I mean, you can smack a person and hit
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by the neck, did not know who was grabbing him, and panicked once he believed

he was being assaulted.

       The jury was instructed that Harrington was guilty of second-degree robbery

if the State proved:

             1. On or about the 4th day of December, 2013, the defendant,
       Andre Harrington had the specific intent to commit a theft.
             2. In carrying out his intention or to assist him in escaping from
       the scene, with or without the stolen property, the defendant
       committed an assault on Brian Drechney.

The jury found Harrington guilty as charged.3

       Harrington filed his application for PCR in 2021. He alleged he received

ineffective assistance from trial counsel. As relevant here, Harrington asserted

trial counsel provided ineffective assistance by failing to (1) provide notice

Harrington intended to rely on self-defense as a justification for his action and to



       them to the ground, but that doesn’t mean that you punched a
       person.
3 As our supreme court explained in the rest of the proceedings:

               Outside the presence of the jury, the district court asked
       Harrington if he wanted to stipulate to the two prior felony convictions
       in support of the habitual offender enhancement or if he wanted the
       issue decided by the jury. Harrington acknowledged the two prior
       felony convictions, but expressed his desire for the matter to be
       decided by the jury. After a spirited colloquy, the district court
       accepted Harrington’s admission to the prior felonies and concluded
       no jury determination was needed because Harrington admitted to
       the prior convictions. During the colloquy, Harrington was informed
       that his admission meant he was no longer entitled to a trial.
               The district court subsequently sentenced Harrington for the
       crime of robbery in the second degree as a habitual offender. He was
       sentenced to fifteen years in prison, with a mandatory minimum
       period of incarceration of seventy percent before eligibility for parole.
State v. Harrington, 

, 40–41 (Iowa 2017). Harrington appealed and,
while affirming his conviction for second-degree robbery, our supreme court
reversed the district court’s ruling as it applied to Harrington’s status as an habitual
offender and remanded the case. After two additional trials—the first resulted in a
mistrial—it was determined the habitual offender enhancement applied.
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request a jury instruction on it and (2) object to Harrington being shackled in view

of the jury at trial.

        The district court denied Harrington’s application, concluding Harrington

failed to establish prejudice.

        Harrington appeals.

II. Standard of Review.

        The Sixth Amendment to the United States Constitution guarantees

defendants the right to effective assistance of trial counsel. State v. Senn, 

 (Iowa 2016). So when an applicant asserts they received ineffective

assistance from trial counsel, their PCR claim is constitutional in nature, and we

review de novo. Lado v. State, 

 (Iowa 2011).

III. Discussion.

        “[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, 

 (Iowa 2011). “We start with the

presumption that the attorney performed competently and proceed to an

individualized fact-based analysis.” Lamasters v. State, 

(Iowa 2012). “[C]ounsel has no duty to raise an issue that has no merit.” State v.

Dudley, 

 (Iowa 2009). And “[e]ven if [the applicant] can show

his counsel made a professionally unreasonable error, the judgment shall not be

set aside unless it can be shown the error had an effect on the judgment.”

Lamasters, 

. “We may affirm the district court’s rejection of an

ineffective-assistance-of-counsel claim if either element is lacking.” 

 (citation

omitted).
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       Self-Defense. First, we consider whether Harrington’s trial counsel had a

duty to file a notice of self-defense and request that the jury be instructed on it.

See 

 (2013) (“A person is justified in the use of reasonable force

when the person reasonably believes that such force is necessary to defend

oneself or another from any actual or imminent use of unlawful force.”). Harrington

maintains he was justified in striking Drechney because, at the time he did so, he

did not realize Drechney was a store employee trying to stop him from leaving with

the merchandise.

       But as the State argues, under the facts of Harrington’s case, Harrington

was disqualified from asserting justification so trial counsel had no duty to raise the

issue. While a person can be justified in using reasonable force against another,

the fact that Harrington was engaged in the illegal act of theft at the time he hit

Drechney made the defense unavailable to him. See 

 §§ 704.3 (providing

justification defense), .6(3) (providing the defense of justification is not available—

absent some exceptions not present here—for a defendant “who initially provokes

the use of force against oneself by one’s unlawful acts”); cf. See State v. Lorenzo

Baltazar, 

, 871 (Iowa 2019) (“We conclude the record established

Baltazar engaged in an illegal activity that disqualified him from asserting his

justification.”). Trial counsel did not breach a duty by not raising the issue of self-

defense; this claim of ineffective assistance fails.

       Shackles. Harrington maintains he was shackled in front of the jury during

his trial; he suggests this is inherently prejudicial so he should get a new trial.

       We note that Harrington had three separate trials—his first, in which a jury

found Harrington guilty of second-degree robbery and the court wrongly accepted
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Harrington’s admission of previous crimes to impose the habitual offender

enhancement; his second, which occurred on remand from the supreme court for

the purpose of determining whether the habitual offender enhancement applied

but ended in a mistrial; and a third, where the jury concluded it was Harrington who

committed the previous eligible offenses to trigger the enhancement. Harrington

does not specify in which of the three trials he was shackled. And he pointed to

no spot in the record of those three trials that corroborates his claim of shackling.

When asked at the PCR trial, his trial counsel—who was the same for all three

trials—did not recall whether Harrington was shackled.          Still, the PCR court

seemed to accept as fact Harrington’s testimony that he appeared in front of the

jury with visible leg shackles.

       Assuming Harrington was shackled before the jury, Harrington still has the

burden to prove he was prejudiced to establish his claim of ineffective assistance.

See Johnson v. State, No. 15-0776, 

, at *2 (Iowa Ct. App. Sept.

14, 2016) (requiring applicant to establish prejudice to succeed on a claim of

ineffective assistance where trial counsel “allowed” defendant to be shackled in

the jury’s view during the underlying trial). Harrington cites to State v. Wilson for

the proposition that it is inherently prejudicial for a defendant to appear in shackles

in front of the jury. 

 (Iowa 1987). But Wilson does not involve

a claim of ineffective assistance, and it does not stand for the proposition that it is

structural error for the jury to see a defendant in shackles. See 

 at 448–50. In

fact, in Wilson, the supreme court recognized there are instances when “shackling

a defendant may be justified despite the fact that some prejudice will occur” before
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ultimately concluding the shackling of the defendant did not deny him the right to

a fair trial. 

.

       Here, Harrington does not attempt to establish prejudice. And, even if he

had, the evidence of his guilt is overwhelming.         During his trial testimony,

Harrington admitted that he intended to steal items from the store and that he hit

Drechney; the security video admitted at trial showed Harrington hitting Drechney

when he tried to apprehend Harrington leaving the store. Because Harrington

failed to establish prejudice, his claim of ineffective assistance fails. See State v.

Parker, 

 (Iowa 2008) (concluding the defendant could not

establish prejudice where evidence of guilt was overwhelming).

       We affirm the denial of Harrington’s PCR application.

       AFFIRMED.