Wulf v. State

1

ANDREW RUDOLPH WULF, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.

No. 22-0556

Court of Appeals of Iowa

August 30, 2023

Appeal from the Iowa District Court for Davis County, Crystal S Cronk, Judge.

Andrew Wulf appeals the denial of his postconviction-relief application.

Jessica Donels of Parrish Kruidenier Dunn Gentry Brown Bergmann & Messamer L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee State.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.

AHLERS, JUDGE

A jury convicted Andrew Wulf of ongoing criminal conduct and two counts of theft for his actions related to his hunting outfitter business. This court affirmed his convictions on direct appeal. See generally State v. Wulf, No 18-0398, 2019 WL 720469 (Iowa Ct. App. Feb. 20, 2019). Wulf sought postconviction relief (PCR), raising a number of ineffective-assistance-of-counsel claims, which the PCR court rejected. Wulf appeals.

I. Background Facts

On direct appeal, we summarized the facts relating to Wulf's criminal convictions as follows:

Wulf owned and operated Whitetail Ridge Outfitters, LLC (WRO), which provided guided hunts for hunters....

In May 2016, Paul Rademaker entered into an agreement with WRO for a ten-day fully guided hunt in Iowa and Missouri beginning December 27, 2016, for $5000. Wulf paid for Rademaker's lodging at a motel in Bloomfield but only provided three or four meals, rather than the thirty meals Rademaker expected to receive. Also, Wulf never took Rademaker to any hunting locations. Wulf provided Rademaker with an electronic map with a pin on it and told Rademaker to go to the location himself. Rademaker's Iowa hunting license was only valid in Zone 6, but one of the locations Wulf sent to Rademaker was in Zone 5, where it was illegal for Rademaker to hunt. No locations were in Missouri. Wulf did not provide Rademaker with any other guide services. After a few days, Rademaker contacted another outfitter who took him to hunting locations, provided blinds and tree stands, and information from trail cameras. Rademaker did not receive a refund from Wulf.

John Granberg entered into an agreement with WRO for a five-day fully guided hunt in Iowa, beginning December 27, 2016, for which he paid $2750. Wulf told Granberg to check in at the Bloomfield motel, where Wulf had paid for Granberg's lodging. Granberg wanted to go hunting that day. He exchanged calls and texts with Wulf, but Wulf never appeared to take him hunting. Granberg decided to leave Bloomfield. He went to another town and lined up another outfitter. Granberg asked Wulf for a refund but never got any money back.

In May 2016, Randall McMillan entered into a contract with WRO for a five-day fully guided hunt in Iowa in December 2016 and paid a deposit of $1250. Under the terms of the contract, McMillan would be refunded his deposit if he did not receive a nonresident antlered deer-hunting license. McMillan did not receive a nonresident antlered deer-hunting license in the drawing. Wulf did not give McMillan a refund for his deposit.

Id. at *1 (footnote omitted).

The criminal trial included testimony from several people relevant to Wulf's PCR claims. Davis County Sheriff's Deputy Joshua O'Dell, the primary investigator in the case, testified about his investigation. That testimony included repeating statements Rademaker, Granberg, and McMillan made to him during the investigation. During trial, the prosecutor questioned O'Dell about the details of his investigation, including whether he ever questioned Wulf. O'Dell explained that, although he attempted to question Wulf, Wulf never spoke with him.

Game Warden Matt Rush testified at trial that he received reports from hunters complaining about Wulf's services, though he did not identify the complaining hunters. Conservation Officer Bob Stuchel testified that he was still investigating allegations of hunting violations by Wulf.

Wulf's landlord testified that Wulf's rent check bounced. Wulf's former employee explained he had a difficult time getting paid by Wulf and decided it was too much effort to continue to work for Wulf. A motel manager who would sometimes rent rooms to hunters for Wulf's business noted the payment provided by Wulf was sometimes denied and Wulf would need to provide a different credit card number to pay for the room rentals.

Rademaker, Granberg, and McMillan also testified about their experiences contracting with Wulf for hunting expeditions. Rademaker explained that he found negative reviews of Wulf's business online. Likewise, Granberg testified he conducted a Google search of Wulf's name and discovered negative reviews about Wulf and his business.

Any additional facts will be provided as necessary.

II. Discussion

PCR proceedings are ordinarily reviewed for legal error. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). But when the PCR applicant claims trial counsel provided ineffective assistance, which raises a constitutional issue, our review is de novo. Id. With de novo review, "'we give weight to the lower court's findings concerning witness credibility[,]' [b]ut we are not bound by the lower court's determination." Id. (internal citation omitted).

To establish an ineffective-assistance-of-counsel claim, the applicant must establish both (1) counsel failed to perform an essential duty; and (2) that failure resulted in prejudice. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). "Both elements must be proven by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). If an applicant fails to establish either element the claim fails, and we need not address the other element. Dempsey, 860 N.W.2d at 868; see also Sothman, 967 N.W.2d at 522 ("If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently." (citation omitted)).

The first element is satisfied when the applicant demonstrates counsel breached an essential duty by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021) (citation omitted). "We presume counsel acted competently[,] but that presumption is overcome 'if we find [an applicant] has proved [trial] counsel's performance fell below the normal range of competency.'" Sothman, 967 N.W.2d at 522 (citation omitted). "[C]laims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention ...." Ledezma, 626 N.W.2d at 143. "While strategic decisions made after 'thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,' strategic decisions made after a 'less than complete investigation' must be based on reasonable professional judgments which support the particular level of investigation conducted." Id. (citation omitted). And of course, "[t]rial counsel is not incompetent in failing to pursue a meritless issue." State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998).

As to the second element, "constitutional prejudice, the defendant is required to show 'that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). "It is not enough for the defendant to show that the errors had [only] some . . . effect on the outcome of the proceeding." Id. (alterations in original) (citation omitted). "The 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." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

A. Confrontation Clause and Hearsay Objections

Wulf brings a series of claims asserting trial counsel was ineffective for failing to raise Confrontation Clause and hearsay objections to testimony from various witnesses. As these are distinct claims, we will address them separately.

1. Confrontation Clause

"The Sixth Amendment to the United States Constitution guarantees that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" State v. Musser, 721 N.W.2d 734, 753 (Iowa 2006) (alterations in original) (quoting U.S. Const. amend. VI). "An out-of-court statement by a witness that is testimonial in nature is barred under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness." Id. However, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). And "[n]ontestimonial statements are not subject to scrutiny under the Confrontation Clause." Musser, 721 N.W.2d at 753.

With these principals in mind, we turn to Wulf's claims that trial counsel was ineffective for failing to object to testimony as violating his right to confrontation. Wulf claims Deputy O'Dell's testimony about what Rademaker, Granberg, and McMillan told him during his investigation amounted to a Confrontation Clause violation. We disagree. All three men testified and were subject to cross-examination at trial. So, the Confrontation Clause was not violated by Deputy O'Dell's testimony, and counsel was not ineffective for not objecting on this ground. See Crawford, 541 U.S. at 59 n.9 (hol...