IN THE COURT OF APPEALS OF IOWA
No. 1-256 / 10-0466
Filed May 25, 2011
PAUL MICHAEL BLAISE,
STATE OF IOWA,
Appeal from the Iowa District Court for Lee (North) County, Michael J.
Applicant appeals the district court‟s denial of his application for
postconviction relief. AFFIRMED.
Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Michael P. Short, County Attorney, and Robert J. Glaser,
Assistant County Attorney, for appellee State.
Considered by Sackett, C.J., and Doyle and Danilson, JJ. Tabor, J., takes
Paul Blaise appeals the district court‟s denial of his application for
postconviction relief following his guilty plea to first-degree harassment.
claims he received ineffective assistance of counsel because his trial attorney did
not advise him when pleading guilty that he could be civilly committed as a
sexually violent predator. We affirm the judgment of the district court.
I. Background Facts and Proceedings.
The background facts of this case were detailed by this court in In re
Detention of Blaise, No. 07-0188 (Iowa Ct. App. Apr. 22, 2009):
Paul Blaise has a long history of sexually aberrant behavior,
going back as early as 1989. He was convicted of sexual abuse in
the third degree in 1991 after abusing a nine-year-old girl and was
sentenced to a ten-year term of imprisonment. After his release, he
was in and out of jail and prison for a variety of offenses, including
sexually related offenses. Even while incarcerated, Blaise was
unable to contain his sexual deviance and sexual assault threats,
and as a result, he received numerous disciplinary reports for
On October 17, 2005, less than six months after his latest
release from jail, Blaise was picking up cans in a Fort Madison park
when he approached a stranger and began talking to her. He
asked the woman several inappropriate questions about sex.
Additionally, he asked the woman if she would perform various
sexual acts if someone threatened her with a gun. The woman
became frightened and contacted the police, and Blaise was
arrested shortly thereafter in the park while in possession of a gun.
He pleaded guilty to first-degree harassment and was sentenced to
a two-year term of imprisonment.
On October 16, 2006, while Blaise was serving his sentence
for the harassment offense, the State filed a petition alleging Blaise
was a sexually violent predator under Iowa Code chapter 229A
A jury later found Blaise‟s 2005 harassment offense was a sexually motivated
crime, and then found Blaise to be a sexually violent predator. The district court
entered an order of commitment.1
In May 2007, Blaise filed an application for postconviction relief from his
harassment conviction that was later amended by his court-appointed counsel.
In an affidavit filed in support of the application, Blaise stated his trial counsel
did not inform me at the time of my plea or while discussing my
decision to enter a guilty plea the full range of possible penalties,
including the civil commitment process, which has ultimately
resulting in my continued placement at Cherokee, Iowa.
If I had been advised of the civil commitment procedures I
would not have entered a plea of guilty, and would have stood trial
on this charge.
The matter proceeded to an evidentiary hearing before the district court.
Blaise‟s trial counsel testified that he did not discuss civil commitment with
First of all, it was something that actually occurred after our
representation of him and after his sentencing. It‟s not an element
of the harassment first degree charge, and it‟s a determination that
would have to be made by the Court at a later date.
He continued, “It was a totally collateral issue.”
Following the hearing, the district court entered a ruling denying Blaise‟s
application. The court found as follows:
When Blaise pled guilty and when he was sentenced, the institution
of a civil commitment proceeding was neither a definite, immediate,
nor largely automatic consequence of the plea. . . . Under these
circumstances, the consequence of an SVP commitment was not
direct, but collateral at best. Mr. Sallen [Blaise‟s trial counsel] did
Blaise successfully appealed that order based on newly discovered evidence
about the State‟s expert witness and was granted a new commitment trial. See In re
Detention of Blaise, No. 07-0188 (Iowa Ct. App. Apr. 22, 2009).
not have a crystal ball to read the future, to know what the prison
authorities, the review committee, and the ultimate fact finder would
decide about the harassment charge to which Blaise pled guilty.
Therefore, under the prevailing case law in Iowa and across the
country, the Court concludes that Sallen did not breach an essential
duty by not informing Blaise of the possibility he would be civilly
committed as an SVP.
The court additionally concluded Blaise failed to prove he was prejudiced, finding
“Blaise‟s statement that he would have gone to trial if he had known about the
possibility of a civil commitment is not credible.”
II. Scope and Standards of Review.
“We normally review postconviction proceedings for errors at law.” Everett
v. State, 789 N.W.2d 151, 155 (Iowa 2010). But when there is an alleged denial
of constitutional rights such as ineffective assistance of counsel,3 we review the
claim de novo. Id.
In his brief, Blaise states error was preserved by the filing of his notice of
appeal. “While this is a common statement in briefs, it is erroneous, for the notice of
appeal has nothing to do with error preservation.” Thomas A. Mayes & Anuradha
Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present
Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (footnote omitted) (explaining that “[a]s a
general rule, the error preservation rules require a party to raise an issue in the trial court
and obtain a ruling from the trial court”). Nevertheless, there is no question error was
properly preserved in this case.
Blaise does not indicate whether his ineffective-assistance-of-counsel claim is
limited to the federal constitution, or whether it involves the state constitution as well. As
our supreme court recently stated in King v. State, ____ N.W.2d ____, ____ (Iowa
When there are parallel constitutional provisions in the federal and state
constitutions and a party does not indicate the specific constitutional
basis, we regard both federal and state constitutional claims as
preserved, but consider the substantive standards under the Iowa
Constitution to be the same as those developed by the United States
Supreme Court under the Federal Constitution. Even in these cases in
which no substantive distinction had been made between state and
federal constitutional provisions, we reserve the right to apply the
principles differently under the state constitution compared to its federal
To prevail on an ineffective-assistance-of-counsel claim, a defendant must
prove by a preponderance of the evidence that (1) counsel failed to perform an
essential duty and (2) prejudice resulted. Id. at 158. A reviewing court need not
engage in both prongs of the analysis if one is lacking. Id. at 159. We conclude
the first is lacking here.
“Counsel‟s duties in connection with a defendant‟s guilty plea include
advising the defendant of available alternatives and considerations important to
counsel or the defendant in reaching a plea decision.” Saadiq v. State, 387
N.W.2d 315, 325 (Iowa 1986). “When the ineffectiveness claim is based on
alleged failure to advise a defendant of the consequences of a guilty plea, the
rule is that, if the consequences flow „directly‟ from the plea, the plea may be held
invalid.” Mott v. State, 407 N.W.2d 581, 582 (Iowa 1987). On the other hand, if
“the fallout from the plea is „collateral,‟ counsel is generally not held to be
ineffective for failing to inform the defendant about it.” Id. at 585-83.
The distinction between “direct” and “collateral” consequences of a plea
turns on whether the result represents a definite, immediate, and largely
automatic effect on the range of the defendant‟s punishment. Id. at 583. In Mott,
which involved an attorney‟s failure to inform a defendant of the deportation
consequences of a guilty plea, the court recognized the “drawing of lines on the
basis of direct versus collateral consequences . . . is not without its detractors.”
Id. But it nevertheless held,
(Internal citations omitted); see also State v. Ochoa, 792 N.W.2d 260, 266 (Iowa 2010)
(rejecting “lockstep” approach to interpretation of state constitutional provisions).
While there is some merit in the argument that deportation is such a
serious consequence of the plea that it is more akin to a direct
result, we adhere to our rule that failure to advise a defendant
concerning collateral consequences, even serious ones, cannot
provide a basis for a claim of ineffective assistance of counsel.
Id. That holding was reaffirmed by State v. Ramirez, 636 N.W.2d 740, 746 (Iowa
2001), in which the Iowa Supreme Court declined the opportunity to overrule Mott
and continued to adhere to the collateral consequences rule.
The United States Supreme Court‟s recent decision in Padilla v. Kentucky,
____ U.S. ____, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) calls the continued
viability of the collateral consequences rule applied in Ramirez, Mott, and
countless other cases in Iowa and elsewhere into question.4 Padilla considered
the same claim made by the defendants in Mott and Ramirez: whether trial
counsel performed ineffectively in failing to provide advice to the defendant about
the “virtually mandatory” deportation consequences of a guilty plea to a drug
offense. Padilla, ____ U.S. at ____, 130 S. Ct. at 1478, 176 L. Ed. 2d at 290.
The Court held “constitutionally competent counsel would have advised [the
defendant] that his conviction for drug distribution made him subject to automatic
deportation.” Id. In so holding, the Court noted it had “never applied a distinction
constitutionally „reasonable professional assistance‟ required under Strickland.”
Id. at ____, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293. But it avoided answering
whether such a distinction is appropriate because of the unique nature of
Eleven circuits, more than thirty states (Iowa among them), and the District of
Columbia subscribe to the collateral consequences rule. Gabriel J. Chin & Richard W.
Holmes Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87
Cornell L. Rev. 697, 699 (2002).
deportation, which it characterized as a particularly severe penalty closely
connected to the criminal process. Id. at ____, 130 S. Ct. at 1481-82, 176 L. Ed.
2d at 293-94.
Blaise does not urge this court to apply Padilla to his claim.5 Instead, he
argues that civil commitment should be considered as more akin to a direct
rather than collateral consequence of his guilty plea because of its severe
consequences, which effectively increased the length of his punishment. We
disagree, though not without some reservations in light of Padilla.
Commitment as a sexually violent predator under Iowa Code chapter
229A was not a definite, immediate, or automatic result of Blaise‟s conviction for
first-degree harassment. See Mott, 407 N.W.2d at 583. For a person “presently
confined,” chapter 229A proceedings are commenced only after a review
committee “has determined that the person meets the definition of a sexually
violent predator.” Iowa Code § 229A.4(1). It is then up to the attorney general to
decide whether to file a petition alleging the person is a sexually violent predator.
See id. (stating “the attorney general may file” such a petition (emphasis added)).
After a petition is filed, the district court must make a preliminary determination
as to whether probable cause exists to believe that the person named in the
petition is a sexually violent predator. Id. § 229A.5(1). If probable cause exists,
the person is transferred to an appropriate facility for an evaluation.
§ 229A.5(5). A jury or bench trial is then held to determine whether the State
We note Padilla was decided after the district court entered its ruling denying
Blaise‟s postconviction relief application. The retroactivity of Padilla is an open question
among the federal courts. No circuit court of appeals has ruled on the matter, and the
district courts are split. See Phillips v. State, No. A10-1012, 2011 WL 781197 n.2 (Minn.
Ct. App. Mar. 8, 2011).
proved beyond a reasonable doubt that the respondent is a sexually violent
predator. Id. § 229A.7(3)-(5).
As is clear from the foregoing, Blaise‟s commitment as a sexually violent
predator was far from a foregone conclusion following his conviction for firstdegree harassment, which is not listed as a per se sexually violent offense in the
statute. See Iowa Code § 229A.2(10). We agree with the Fourth Circuit Court of
Appeals in Cuthrell v. Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir. 1973)
the fact that the acceptance of the petitioner‟s plea of guilty to the
crime of criminal assault placed him in a class, where he might, as
a result of the judgment in an entirely separate civil proceeding . . .
be committed . . . for treatment and not punishment was such a
collateral consequence of his plea that the failure of the trial court to
advise him of such possibility will not render his plea involuntary.
Other courts, before Padilla, have reached the same conclusion.
Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004); George v. Black, 732 F.2d
108, 110-11 (8th Cir. 1984); Martin v. Reinstein, 987 P.2d 779, 805 (Ariz. Ct.
App. 1999); In re Hay, 953 P.2d 666, 676 (Kan. 1998); State v. Bare, 677 S.E.2d
518, 531-32 (N.C. Ct. App. 2009); State v. Myers, 544 N.W.2d 609, 610-11 (Wis.
Ct. App. 1996); see also Chin & Holmes, 87 Cornell L. Rev. at 705 (noting civil
commitment is deemed a collateral consequence by most courts).
Furthermore, Blaise‟s commitment as a sexually violent predator had no
effect on the range of his punishment for harassment. See Ramirez, 636 N.W.2d
at 744 (stating deportation did not have an effect on the range of defendant‟s
punishment “„because it is not the sentence of the court which accepts the plea
but of another agency over which the trial judge has no control and for which he
has no responsibility‟” (citation omitted)). The primary purpose of chapter 229A
“is protection of the public, which is achieved through the confinement of SVPs
for long-term treatment.” In re Detention of Fowler, 784 N.W.2d 184, 188 (Iowa
2010). The statute is not punitive or criminal in nature. See Atwood v. Vilsack,
725 N.W.2d 641, 651 (Iowa 2006) (“By enacting Iowa‟s SVP statute, the
legislature did not intend to punish sexually violent predators.”); In re Detention of
Garren, 620 N.W.2d 275, 283 (Iowa 2000) (“[W]e hold the Sexually Violent
Predator Act is civil in nature, not criminal.”).
In light of the foregoing, we agree with the district court that trial counsel
had no duty to inform Blaise that he might possibly be subject to civil commitment
as a sexually violent predator in pleading guilty to first-degree harassment.6 That
being said, we think it is desirable for counsel to advise defendants of such
matters and encourage them to do so in the future. See, e.g., Ramirez, 636
N.W.2d at 745 (urging the same in the context of deportation).
The district court‟s denial of Blaise‟s application for postconviction relief is
Our conclusion might be different were the Supreme Court‟s analysis in Padilla
applied. Compare Taylor v. State, 698 S.E.2d 384, 388 (Ga. Ct. App. 2010) (finding
under Padilla “that even if registration as a sex offender is a collateral consequence of a
guilty plea, the failure to advise a client that his guilty plea will require registration is
constitutionally deficient performance” because of the similarities between registration as
a sex offender with deportation) with Maxwell v. Larkins, No. 4:08-CV-1896-DDN, 2010
WL 2680333 (E.D. Mo. July 1, 2010) (stating commitment as a sexually violent predator
does not implicate the Supreme Court‟s concerns in Padilla because it “is a multi-level
process, culminating in a jury or bench trial, in which the fact finder must determine,
beyond a reasonable doubt, that the offender is a sexually violent predator”).