Dayvon Freeman appeals the denial of his application for postconviction relief (PCR). He contends his counsel was ineffective in several ways and he should have been granted new counsel in his original proceedings. We affirm.
I. Background Facts & Proceedings
In 2017, Freeman pleaded guilty to one count of kidnapping in the second degree, two counts of robbery in the first degree, and one count of robbery in the second degree. As part of the plea agreement, one of the robbery charges was changed from first- to second-degree and the State dropped four firearm-related charges and the habitual-offender enhancement. The charges arose from a series of three robberies in which the perpetrator threatened the victims with a firearm. Some of the victims described the firearm as a revolver with a wooden handle. Law enforcement had surveillance video of the first two robberies. Police found one of the stolen items from the third robbery in Freemans bedroom, and a victim in the third robbery recognized Freeman from an earlier encounter. The police also found clothing consistent with that worn during the robberies in Freemans room. The day the search warrant was served, a neighbor saw someone come out of Freemans home and leave a bag containing a gun outside the neighboring residence. Police recovered a revolver with a wooden handle.
The court appointed Derek Jones to represent Freeman. In the months between arraignment and entering his plea, Freeman requested new court-appointed counsel three times. Each time the court held a hearing. Following a discussion about the utility of depositions and certain motions, Freeman withdrew his first request at the end of the hearing, explaining “since you broke it down to me, you are the judge and you said the same thing [Jones] said word to word. I would like for him to keep being my ․ attorney.” At a hearing on the second motion, Freeman and Jones agreed they were “not seeing eye to eye,” and Freeman told the court he did not see progress on his case. The court summarily denied the motion. Two weeks later, Freeman again requested substitute counsel. At the beginning of the hearing, Freeman withdrew his request and they proceeded to a plea hearing. During the hearing, he reiterated his desire for counsel to have performed depositions so he could face his accusers and to file motions to suppress and to “squash the arrest for the firearm.” Counsel responded and asserted the requested motions were frivolous and that depositions could reinforce the witnesss mental impressions of Freemans appearance or signal the anticipated defense. Freeman then stated, “I understand where he was coming from, though” and agreed it was a strategic decision. He then pleaded guilty.
Freeman filed a motion to correct illegal sentence, which was denied, as was his attempt to appeal the denial. In November 2018, Freeman filed an application for PCR, alleging ineffective assistance of counsel and asserting his sentence was cruel and unusual. A later amendment added another claim of ineffective assistance. At trial, the court heard testimony from Jones, an attorney who assisted Jones with Freemans case, and Freeman. The court denied Freemans application for PCR.
Freeman appeals, asserting trial counsel provided ineffective assistance by failing to depose witnesses, which led to a failure to discover the witnesses could not identify Freeman as the perpetrator. Freeman also claims counsel coerced him into pleading guilty by not moving to suppress a firearm. He also objects to the use of a risk assessment in his presentence investigation report (PSI). Finally, he argues he was forced to plead guilty when the court denied his request for new counsel.
II. Standard of Review
“We normally review postconviction proceedings for correction of errors at law. However, a PCR application alleging ineffective assistance of counsel raises a constitutional claim, and ‘[w]e review postconviction proceedings that raise constitutional infirmities de novo.’ ” Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018) (alteration in original) (internal citations omitted).
III. Analysis
Freemen alleges his plea counsel provided ineffective assistance in several ways.
To establish ineffective assistance of counsel, [Freeman] must demonstrate his plea counsel “failed to perform an essential duty” that resulted in prejudice. “Counsel breaches an essential duty when counsel makes such serious errors that counsel is not functioning as the advocate the Sixth Amendment guarantees.” “[T]o satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsels errors, he or she would not have pleaded guilty and would have insisted on going to trial.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021) (second alteration in original) (internal citations omitted). “Counsel ․ does not provide ineffective assistance if the underlying claim is meritless.” State v. Halvorson, 857 N.W.2d 632, 635 (Iowa 2015). “Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). We examine ineffective-assistance claims involving strategy “in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed a defendant under the Sixth Amendment.” Id.
1. Depositions. Freemans first asserted instance of ineffective assistance posits if counsel had conducted depositions of the States witnesses, it “would have poked holes in the victims identification, which could have led to the charge[s] being dismissed.” Freeman argues counsel interviewing the witnesses would have uncovered evidence of misidentification from the differences in witness descriptions and Freeman.
In a hearing addressing Freemans first request to change counsel, the issue of taking depositions was raised. Counsel explained his reasoning for not taking them:
I dont believe we would learn information that we dont already have from those depositions; and, in fact, he might damage his case by taking those depositions, since it might allow witnesses to be in a position to identify him face to face before his trial date, which I think will be detrimental to the case.
The court also explained to Freeman that defense attorneys often do not take depositions because “[i]t allows ․ to have the State better prepare its witnesses for trial” and usually results in a better case for the State. At the PCR trial, counsel further explained,
The purpose of a deposition typically is to find out what the witness had to say. In this case we had extensive interview reports related to these witnesses, so I did know what they had say, and if they changed their statement, I was in a position to impeach them.
․
So theres downsides to taking depositions, and unless theres a benefit we anticipate getting from deposing a witness, we dont [d]o it. I believe in this case, given the extensive reports we had about what the witnesses had to say, I did not see a benefit to deposing them.
In its order, the PCR court ruled counsels decision against taking depositions “was both reasonable and strategic.” We agree with the PCR courts ruling. Physical evidence recovered from Freemans home including the stolen item, clothing, and revolver corroborated identifications by the victims. Counsels belief depositions risked solidifying their identifications was reasonable. We also note Freeman only provides speculation depositions would show misidentification; he has not provided any evidence of what the witnesses would have said if deposed. Thus, he has not established counsel not taking depositions resulted in prejudice. See Gronstal v. State, No. 15-2113, 2017 WL 512482, at *3 (Iowa Ct. App. Feb. 8, 2017) (“Just as we will not predicate error on speculation, we will not predicate a finding of ineffective assistance on speculation.” (internal citation omitted)). Freeman has not established a breach of duty or resulting prejudice.
2. Coerced plea. Freeman next claims “he had to accept and enter a plea because he had no confidence in [counsels] ability to adequately represent him at trial.” “To attack a plea as coerced, a defendant normally must file a motion in arrest of judgment within forty-five days of the plea entry but no more than five days before sentencing.” Poole v. State, No. 21-1232, 2023 WL 2396418, at *3 (Iowa Ct. App. Mar. 8, 2023) (citing Iowa R. Crim. P. 2.24(2)(a)). Freeman filed no motion in arrest of judgment. However, even if the issue was preserved, his argument would still fail.
At the plea proceeding, Freeman agreed he understood the plea agreement and had signed it. He withdrew his request for substitute counsel. The trial court then asked, “Sir, other than this plea agreement, have there been any other promises made to you or other agreements made or is anyone forcing you or threatening you which makes you come forward to enter these pleas of guilty?” Freeman answered, “No, sir.” The PCR court found this sufficient to overcome Freemans claim.
Freeman provides no authority to support his argument that lack of faith in his trial counsel is sufficient to establish coercion of a plea. Nor does Freeman cite any authority supporting a claim of coercion when a defendant has agreed on the record there was no force or threat behind his plea. On our review, we find no evidence counsel coerced Freeman to plead guilty.
The PCR court also briefly considered Freemans claim he was forced to retain court-appointed counsel he did not choose in the context of Freemans argument that his plea was coerced. During his guilty-plea colloquy, Freeman affirmed he understood counsels strategy, stated he was still willing to plead, withdrew his request for substitute counsel, and pleaded guilty. In so doing, Freeman waived any error concerning the denial of his motions for substitute counsel. See State v. McGruder, No. 17 1839, 2018 WL 4360996, at *2 (Iowa Ct. App. Sept. 12, 2018) (“[T]he denial of a motion for substitute counsel is waived by a guilty plea, where the guilty plea explicitly confirmed satisfaction with plea counsel.” (alteration in original) (citation omitted)). Therefore, we also affirm on his substitute counsel claim.
3. Risk assessment. Freeman claims counsel should have investigated the risk assessment used as part of his PSI and objected to the sentencing courts use of the assessment when determining his sentence. He argues the court relied on the assessment without considering associated cautions and limitations because counsel did not object and that he was not provided an opportunity to challenge the assessment results.
Our supreme court has expressly ruled risk assessment “tools provide pertinent information that a sentencing judge may consider.” State v. Headley, 926 N.W.2d 545, 551 (Iowa 2019). “The district court does not abuse its discretion by considering risk assessment information in a [PSI] where a defendant has notice of the risk assessment and fails to present evidence exposing some actual unsoundness in it.” State v. Martin, 2 N.W.3d 271, 275 (Iowa 2024).
Freeman presented no evidence at his PCR trial of actual unsoundness of the risk assessment used in his PSI. Without such evidence, he has not proved his claim counsel breached a duty by failing to object to the assessment and he failed to prove prejudice. So, Freemans ineffective-assistance claim fails.
IV. Disposition
We find Freeman has not established he received ineffective assistance of counsel and he waived his substitute counsel claim by pleading guilty. We affirm the denial of his application for PCR.
AFFIRMED.
GAMBLE, Senior Judge.