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IN THE COURT OF APPEALS OF IOWA No. 6-734 / 05-1226 Filed December 13, 2006 HUSEIN CEJVANOVIC, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.

The applicant appeals from the district court's denial of his application for postconviction relief. AFFIRMED.

Merrill Swartz of Cartwright, Druker & Ryden, Marshalltown, for appellant. Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.

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SACKETT, C.J. Applicant-appellant, Husein Cejvanovic, appeals from the district court's denial of his application for postconviction relief. He contends the court erred in not determining his trial counsel was ineffective. He claims trial counsel was ineffective (1) in not requesting a jury instruction on intoxication, (2) in not requesting a jury instruction on the confinement element of kidnapping, (3) in not allowing him to testify at trial, (4) in not challenging the actions of the translator, and (5) in not properly communicating the State's plea offer. We affirm. I. Background Appellant was convicted of kidnapping in the first degree, following a jury trial, and sentenced to life in prison. On direct appeal, he claimed inter alia that trial counsel was ineffective in not requesting certain jury instructions. State v.

Cejvanovic, No. 03-0166 (Iowa Ct. App. Feb. 27, 2004). This court affirmed his conviction. Concluding counsel's decisions not to request a jury instruction on intoxication or the confinement element of kidnapping could have been strategic decisions, this court preserved the ineffective assistance claims for possible postconviction proceedings to allow counsel the opportunity to respond to appellant's claims. Id.; see State v. Ruesga, 619 N.W.2d 377, 383 (Iowa 2000). II. Scope of review Generally, we review postconviction relief decisions for errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). When the applicant raises a constitutional issue, however, such as ineffective assistance of counsel, our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

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III. Claims on appeal Applicant raised five claims of ineffective assistance of trial counsel in his postconviction hearing. He claimed trial counsel was ineffective (1) in not

requesting a jury instruction on intoxication, (2) in not requesting a jury instruction on the confinement element of kidnapping, (3) in not allowing him to testify at trial, (4) in not challenging the actions of the translator, and (5) in not properly communicating the State's plea offer. On appeal from the district court's denial of postconviction relief, he contends he is entitled to a new trial for the reasons asserted in the postconviction proceeding. IV. Discussion To establish a claim of ineffective assistance of counsel, a defendant must show (1) counsel failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). A defendant must prove both elements by a preponderance of the evidence. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). "[T]here is a strong

presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). We presume competency and avoid second-guessing and hindsight. State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel. State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). We may dispose of an ineffective-assistance-of-counsel claim if the applicant fails to meet either the breach-of-duty or the prejudice prong.

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Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699 (1984). A. Intoxication instruction. Trial counsel filed notice of an intoxication defense and raised the issue of the defendant's intoxication throughout the trial, questioning witnesses about the degree of his intoxication. "Evidence of temporary intoxication is simply evidence to be considered by the jury on the issue of intent." State v. Lawrence, 559 N.W.2d 292, 296 (Iowa Ct. App. 1996). Intoxication is a defense only when it causes a mental disability that makes the person incapable of forming the specific intent necessary for the crime charged. State v. Collins, 305 N.W.2d 434, 436 (Iowa 1981). The fact that a person is intoxicated neither excuses the person's act nor aggravates his or her guilt, but may be relevant in proving a person's lack of specific intent. See Iowa Code

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