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IN THE COURT OF APPEALS OF IOWA No. 1-817 / 11-0175 Filed December 7, 2011

COURTNEY DOSS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.

Courtney Doss appeals the district court's denial of her application for postconviction relief. AFFIRMED.

Wallace L. Taylor, Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Robert A. Hruska, Assistant County Attorney, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Tabor, J., takes no part.

2 VAITHESWARAN, P.J. An informant named Daniel Ray assisted Cedar Rapids police in a controlled drug purchase. Ray, who was fitted with a recording device, gave a man money for the drugs. A woman, later identified as Courtney Doss, handed Ray the drugs. Doss was charged with and found guilty of delivery of a controlled substance. She appealed her judgment and sentence, but the appeal was

dismissed as frivolous under what is now Iowa Rule of Appellate Procedure 6.1005. Doss filed an application for postconviction relief, raising several grounds for relief, including the following: (1) her trial attorney was ineffective in advising Doss not to testify and (2) her appellate attorney was ineffective in failing to challenge the court's removal of her first trial attorney based on a conflict of interest. Following a hearing, the district court denied the application. Doss appeals, raising the same two issues. To prevail, she must show trial counsel (1) breached an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). I. Right to Testify At the hearing on Doss's postconviction relief application, Doss testified that her trial attorney told her she "shouldn't testify." She stated that if she had testified at trial, she would have told the jury, "I did not do it. I am not a drug dealer."

3 Doss's trial attorney did not remember the substance of her meetings with Doss but testified to her general practice in conferring with clients. She was then asked: Q. Have you ever prevented any--a client of yours who wanted to testify at trial from testifying? A. No. I can't ethically do that and I would not do that. Q. Do you make a recommendation to your clients as to whether they should testify at trial? A. I certainly do. Q. What do you base that recommendation on? A. There's a lot of different factors. And, again, it depends on the individual case. One factor that is given consideration is their past criminal history. . . . Just the way they present themselves and how well they may or may not testify at trial, inconsistencies there may have been between what they said previously, say, in interviews with the police and what they would be testifying to. . . . Q. And what if a client doesn't accept your assessment of the wisdom of their testifying or not? A. Then if that person wants to testify, they get to testify. The postconviction court found credible the attorney's statement that she would have allowed Doss to testify if she had wished to. The court determined the attorney's performance was "well within the normal range of competency" and, accordingly, rejected this ineffective-assistance-of-counsel claim. On our review of this ruling, we examine the record de novo, but give weight to the district court's credibility finding. See Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984). While Doss's trial attorney did not remember the specifics of her conversations with Doss, she unequivocally stated that she would not prevent a client from testifying. Doss did not refute this testimony. She simply stated that her attorney told her she "shouldn't testify." This advic e was

consistent with the attorney's obligation to leave the ultimate decision about testifying to the defendant. Ledezma v. State, 626 N.W.2d 134, 146

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