STATE OF IOWA, Plaintiff - Appellee, vs. STEVEN BRUCE ROWLEY, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-755 / 07-0168
Filed October 29, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVEN BRUCE ROWLEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, William J.
Pattinson, Judge.
Defendant appeals his sentences for the crimes of second-degree murder
and willful injury and the denial of his claim for postconviction relief. AFFIRMED.
Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, L.L.P., Ames, for
appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney
General, Patrick Chambers, County Attorney, and Jonathan Beaty, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Eisenhauer, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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ROBINSON, S.J.
I.
Background Facts & Proceedings
Steven Rowley was charged with one count of first-degree murder for the
death of his wife, Kathryn. Rowley subsequently entered into a plea agreement
with the State whereby the trial information was amended to charge him with two
counts: second-degree murder, in violation of Iowa Code section 707.3 (1995);
and willful injury, in violation of section 708.4. Rowley entered Alford pleas to
both charges.1 The parties agreed the district court could find a factual basis for
the pleas in the minutes of testimony.
Rowley was sentenced to a term of
imprisonment not to exceed fifty years on the second-degree murder charge, and
ten years on the willful injury charge, to be served consecutively. Rowley’s direct
appeal was dismissed as frivolous. See Iowa R. App. P. 6.104.
On March 9, 2000, Rowley filed a 102-page pro se application for
postconviction relief. One of the many issues raised in the application was the
claim that his defense attorneys should have filed a motion in arrest of judgment
to challenge his guilty pleas. The application stated, “Both before and during the
hearing Plaintiff’s attorneys reiterated the information received that Plaintiff would
actually only serve about 110 months, or about 10-12 years.”
Rowley also
stated, “A large part of Plaintiff’s decision was, in fact, based on the notion that
the time actually served would be about five years to 110 months.”
The district court determined Rowley had failed to show he received
ineffective assistance due to his counsel’s failure to file a motion in arrest of
1
In an Alford plea a defendant pleads guilty, but does not admit liability for the
underlying facts of the criminal prosecution. See North Carolina v. Alford, 400 U.S. 25,
32-38, 91 S. Ct. 160, 164-68, 27 L. Ed. 2d 162, 168-72 (1970).
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judgment. The court denied Rowley’s request for postconviction relief. Rowley’s
appeal was dismissed by order of the Iowa Supreme Court under Iowa Rule of
Appellate Procedure 6.104, based on the court’s conclusion the appeal was
frivolous.
Rowley filed a second application for postconviction relief on October 10,
2002.2 The district court granted summary judgment to the State, finding the
application was untimely under the three year statute of limitations found in
section 822.3. We affirmed the decision of the district court, noting “It is clear
Rowley’s claims could have been raised in the first postconviction action, and in
fact were raised in that action.” Rowley v. State, No. 04-0799 (Iowa Ct. App. Apr.
28, 2005).
On June 23, 2004, while the appeal on the second postconviction action
was pending, Rowley filed a motion to correct an illegal sentence. He claimed
that willful injury is actually a lesser included offense of second-degree murder,
and that under section 701.9 the sentence for willful injury should merge into the
sentence for second-degree murder. The district court determined it did not have
jurisdiction to consider the motion because of the pending appeal.
Rowley
appealed that decision. In the meantime, an opinion had been filed in the second
postconviction appeal, and we remanded the case to the district court for a ruling
on the merits of Rowley’s motion. See State v. Rowley, No. 04-1394 (Iowa Ct.
App. Mar. 1, 2006).
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The second postconviction action raised issues relating to judicial misconduct by the
presiding judge at the time of the plea negotiations.
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On remand Rowley filed a motion to amend to include an application for
postconviction relief (third postconviction action).
He claimed he received
ineffective assistance because defense counsel provided him with incorrect and
misleading information about how much time he would actually have to serve on
his sentences. He asserted that if he had been correctly informed about how
long he would have to serve in prison before he was paroled, he would not have
pled guilty.
The district court entered a ruling on December 28, 2006, denying
Rowley’s motion to correct an illegal sentence.
The court determined willful
injury is not a lesser included offense of second-degree murder because the
crime of willful injury requires a specific intent to cause bodily injury that creates a
substantial risk of death, and second-degree murder does not have this specific
intent element. In the alternative, the court found Rowley knowingly pled guilty to
two separate crimes, and the minutes of testimony provided factual support for
two separate and distinct offenses.
The court set for a separate hearing
Rowley’s application for postconviction relief.
Rowley appealed the court’s decision on his motion to correct an illegal
sentence. The district court concluded it no longer had jurisdiction to consider
the third application for postconviction relief. The Iowa Supreme Court granted
Rowley’s motion for a limited remand to permit the district court to address this
issue. The State argued Rowley’s claim was barred by section 822.3. The
district court addressed the issue on the merits, finding the defense attorneys
made no promises that Rowley would serve a certain amount of time. The court
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found, “I do not believe that Mr. Rowley relied upon any estimation of his
incarceration and further I do not find that any such reliance would have been
warranted under the circumstances.”
II.
Illegal Sentence
Rowley contends the district court erred by refusing to grant his motion to
correct an illegal sentence. An illegal sentence may be corrected at any time.
Iowa R. Crim. P. 2.24(5)(a). A failure to follow the merger statute, section 701.9,
creates an illegal sentence because “[w]here a lesser-included offense is merged
with the greater offense, a conviction on the lesser-included offense is void.” See
State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997). We review the district
court’s decision for the correction of errors at law. See State v. Bullock, 638
N.W.2d 728, 731 (Iowa 2002).
Section 701.9 provides:
No person shall be convicted of a public offense which is
necessarily included in another public offense of which the person
is convicted. If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.
Rowley claims willful injury under section 708.4 is a lesser included offense of
second-degree murder under section 707.3, and under section 701.9 his
conviction for willful injury should be merged into his conviction for seconddegree murder.
We first express doubt that willful injury is a lesser included offense of
second-degree murder. Second-degree murder requires only general criminal
intent. State v. Klindt, 542 N.W.2d 553, 555 (Iowa 1996). On the other hand,
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willful injury is a specific intent crime. State v. Smith, 739 N.W.2d 289, 292 (Iowa
2007). The crime of willful injury has as an element the specific intent to cause
serious injury to another. Iowa Code § 708.4; State v. Floyd, 466 N.W.2d 919,
924 (Iowa Ct. App. 1990).
Rowley argues the requirement of malice
aforethought in second-degree murder is the equivalent of the specific intent
element of willful injury. We note, however, “intent to cause serious injury and
malice aforethought remain distinct elements, and the presence of one does not
establish the other.” State v. Escobedo, 573 N.W.2d 271, 279 (Iowa Ct. App.
1997).
Even if willful injury is a lesser included offense of second-degree murder,
Rowley is not benefitted because the evidence supports his guilty plea to two
separate crimes. Section 701.9 does not apply when there are two separate and
distinct crimes. State v. Bundy, 508 N.W.2d 643, 643-44 (Iowa 1993). Whether
one offense is a lesser included offense of another is irrelevant when the State
files the two charges as separate offenses and proves them both.
State v.
Truesdell, 511 N.W.2d 429, 432 (Iowa Ct. App. 1993). “Where the alleged acts
occur separately and constitute distinct offenses there can be no complaint that
one is a lesser included offense of the other.” State v. Spilger, 508 N.W.2d 650,
652 (Iowa 1993).
Where a defendant pleads guilty to two crimes, the record must minimally
support a factual basis for two separate crimes. State v. Walker, 610 N.W.2d
524, 527 (Iowa 2000). An Alford plea is conditioned on the court’s ability to find
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factual support for every element of the offense in the record from sources other
than the defendant. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
At the plea proceedings, the parties agreed the court could consider the
minutes of testimony to provide the factual basis for Rowley’s guilty pleas. The
medical examiner determined Kathryn had several injuries to her head, and
defense-type injuries to her arms. Thus, there was evidence that Rowley struck
several blows at Kathryn, one of which was intended to cause serious injury, and
another which resulted in her death. There was evidence that noises from the
Rowleys’ apartment would end at times and then start up again. We also note
that the parties’ plea agreement was that Rowley would plead guilty to two
separate and distinct crimes, and the trial information was specifically amended
to conform to the plea agreement.
We conclude Rowley has not shown the district court erred by denying his
motion to correct an illegal sentence. Rowley was properly sentenced for two
separate offenses.
III.
Postconviction Relief
Rowley claims the district court should have granted his application for
postconviction relief based on his claim of ineffective assistance of counsel
during the plea proceedings. He asserts his claim is not barred by the three-year
limitations period in section 822.3 because he did not know he received
erroneous advice from his attorneys about how much time he would serve on his
sentence until that specific time period had expired. On the issue of whether a
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postconviction action is time barred, we review for the correction of errors at law.
State v. Harrington, 659 N.W.2d 509, 519 (Iowa 2003).
The State raised the issue of the application of section 822.3 before the
district court, and we conclude this issue has been preserved for our review. See
DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). The relevant portion of section
822.3 provides:
All other applications must be filed within three years from the date
the conviction or decision is final or, in the event of an appeal, from
the date the writ of procedendo is issued. However, this limitation
does not apply to a ground of fact or law that could not have been
raised within the applicable time period.
Newly discovered evidence is a ground that “could not have been raised”
previously. See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994). A party
must show that the newly-discovered evidence is relevant to the conviction.
Harrington, 659 N.W.2d at 521.
In the first postconviction action, Rowley raised a claim that his defense
attorneys should have filed a motion in arrest of judgment to challenge his guilty
pleas, and pointed out his attorneys “reiterated the information received that
Plaintiff would actually only serve about 110 months, or about 10-12 years.” In
the third postconviction action, Rowley is claiming he received incorrect and
misleading information from his attorneys about how much time he would actually
be required to serve on his sentences.
We determine that based on the allegations in the first postconviction
action Rowley was aware of the issue he now raises at that time, and the issue
he is raising in the third postconviction action is not an issue that “could not have
9
been raised within the applicable time period.” See Iowa Code § 822.3. We find
Rowley’s third postconviction action should have been dismissed on the basis it
was untimely.
We note, however, that the district court denied Rowley’s third
postconviction action on the merits, finding he failed to show he received
ineffective assistance of counsel. On claims of ineffective assistance of counsel,
our review is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). A
postconviction applicant claiming ineffective assistance of counsel during guilty
plea proceedings must show counsel breached an essential duty and must prove
prejudice by showing but for counsel’s actions the applicant would have insisted
on going to trial instead of entering a guilty plea. State v. Tate, 710 N.W.2d 237,
240 (Iowa 2006).
If we were to address Rowley’s claims on the merits, we would find he
failed to show his attorneys breached an essential duty by providing him with
incorrect or misleading information.
At the postconviction hearing Rowley
testified his defense attorneys did not guarantee or promise him anything
regarding the time he would serve. The two defense attorneys testified Rowley
was informed that there were no guarantees, and he could actually serve more or
less time than they estimated.
We affirm the district court’s decision finding Rowley failed to show he was
entitled to postconviction relief.
AFFIRMED.
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