STATE OF IOWA, Plaintiff - Appellee, vs. ANTHONY DAVID CLAFFY , Defenda nt - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-875 / 07-2053
Filed February 4, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANTHONY DAVID CLAFFY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis,
District Associate Judge.
Anthony David Claffy appeals his conviction and sentence to the
aggravated misdemeanor of indecent contact with a child. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, Janet M. Lyness, County Attorney, and Anne Lahey, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
VOGEL, P.J.
Anthony David Claffy pled guilty and was convicted of indecent contact
with a child, an aggravated misdemeanor under Iowa Code sections 709.12(2)
and 702.5 (2007). He was sentenced under Iowa Code sections 903.1 to serve
180 days in jail with credit for time served.1 Claffy was also given a special tenyear sentence under section 903B.2, ordered to participate in the sex offender
treatment program, and required to register as a sex offender. On direct appeal,
Claffy claims his counsel was ineffective (1) for failing to file a motion in arrest of
judgment, contending there was no factual basis to support his guilty plea; (2) for
moving the court to set aside the order for a competency evaluation; and (3) for
failing to request a pre-sentence investigation report. Further, he argues that the
district court erred in imposing the section 903B.2 special sentence, claiming it
violated the state and federal constitutions.
I.
Background Facts and Proceedings
Claffy, a twenty-eight year old male was present in the women’s restroom
at the Iowa City Recreation Center when C.M., a nine-year-old girl, entered. The
two had never met, but Claffy approached C.M., hugged her and rubbed her
buttocks. She proceeded to go into a restroom stall and close the door. Claffy
crawled under the stall door and stared at C.M. as she sat on the toilet. Another
woman then entered the restroom which prompted Claffy to crawl out from C.M.’s
stall, using the woman’s leg for support. C.M. then left the restroom and reported
the incident.
1
The 180-day sentence was fully discharged prior to the plea proceedings and
sentencing.
3
Claffy was charged with indecent contact with a child. He filed a notice of
defense of diminished capacity. He was later diagnosed with schizophrenia by
psychologist, Dr. Dan L. Rogers, who opined that Claffy’s behavior at the time of
the incident was consistent with a hypoglycemic episode.
Based on this
diagnosis, Claffy’s attorney, Tom Woods, filed an application seeking to have
Claffy undergo a “more detailed psychiatric evaluation” to determine whether he
was competent to stand trial.
requested a new attorney.
Disagreeing with counsel’s application, Claffy
Lars Anderson was then appointed to represent
Claffy.
At a subsequent hearing, Claffy testified that he was completely
competent and fit to stand trial, able to assist in his defense, and anxious to have
the trial begin, after having spent eight months in jail. The court found otherwise
and ordered the more complete psychiatric evaluation be conducted at the Iowa
Medical Classification facility. Prior to the ordered evaluation, Dr. Frank Gersh, a
clinical psychologist, evaluated Claffy at the Johnson County jail and deemed
him fit to stand trial. Presented with this second evaluation, the district court
granted Claffy’s motion to set aside the previous order for psychiatric evaluation
at the Iowa Medical Classification facility. On October 4, 2007, Claffy signed a
plea agreement in which he pled guilty as charged to indecent contact with a
child.
He appeals his conviction, raising issues of ineffective assistance of
counsel, and appeals his sentence on constitutional grounds.
II.
Standard of Review
Our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa
2001). In order to succeed on a claim of ineffective assistance of counsel, Claffy
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must prove by a preponderance of evidence that (1) counsel failed to perform 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). Ordinarily, we do
not decide ineffective-assistance-of-counsel claims on direct appeal. State v.
Tate, 710 N.W.2d 237, 240 (Iowa 2006). We prefer to reserve such questions for
postconviction proceedings so the defendant’s trial counsel can defend against
the charge. Id. However, we depart from this preference in cases where the
record is adequate to evaluate the appellant’s claim. Id.
III.
Guilty Plea
Claffy argues that there was no factual basis supporting his guilty plea and
therefore counsel was ineffective for failing to file a motion in arrest of judgment
to challenge the adequacy of the plea. Iowa R. Crim. P. 2.24(3)(a). Before
accepting a guilty plea, the district court must establish on the record a factual
basis for the plea. Iowa R. Crim. P. 2.8(2)(b). If the defendant enters a guilty
plea and the record fails to disclose a factual basis, defense counsel fails to
provide effective assistance. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001).
To support a factual basis for a guilty plea, the record includes the minutes of
testimony and statements made by the defendant and prosecutor at the guilty
plea proceeding; this record, as a whole, must disclose facts to satisfy elements
of the crime. Id.
We find the record adequate to address this claim on direct appeal. To be
convicted of indecent contact with a child under Iowa Code section 709.12(2), the
factual basis needed to establish Claffy, “for the purpose of arousing or satisfying
the sexual desires of either of them: . . . touched . . . the clothing covering the
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immediate area of the . . . buttock . . . ” of the child victim. Claffy signed a written
plea agreement that stated, “I have read the Minutes of Testimony filed with the
Trial Information and do not contest the accuracy of those minutes . . . I have
been advised of my right to challenge this plea of guilty by filing a Motion in
Arrest of Judgment . . . .”
The minutes of testimony included a detailed
description of the child-victim’s anticipated testimony describing Claffy’s contact
with her. Although Claffy did not specifically state that he had a sexual purpose
to his actions, that intent can be inferred as a defendant’s intent may be inferred
from his conduct before, during and after an assault and all surrounding
circumstances. See State v Lambert, 612 N.W.2d 810, 813 (Iowa 2000); see
also State v. Murphy, 462 N.W.2d 715, 717 (Iowa Ct. App. 1990) (finding
evidence sufficient to support jury’s verdict including sexual purpose to
defendant’s conduct).
It is clear from the record that there is a factual basis supporting Claffy’s
guilty plea. He entered a women’s restroom, approached and hugged a nineyear-old girl, rubbing her buttock, and then crawled under her closed restroom
stall to observe her while she was sitting on the toilet. Although not admitting to,
nor denying any sexual purpose to his actions, the inference can easily be made
considering all of the circumstances to support the elements of the crime.
Counsel was therefore not ineffective for allowing Claffy to plead guilty and for
not filing a motion in arrest of judgment.
IV.
Competency Evaluation
Claffy next argues that counsel was ineffective for moving the court to set
aside the order for a competency evaluation. For purposes of an ineffective
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assistance of counsel claim, counsel’s performance is measured against the
standard of a reasonably competent practitioner with the presumption that the
attorney performed his duties in a competent manner.
State v. Dalton, 674
N.W.2d 111, 119 (Iowa 2004). Ineffective assistance of counsel is more likely to
be found when counsel’s conduct shows a lack of diligence rather than the
exercise of judgment. Ledezma, 626 N.W.2d at 142.
Claffy argues that based on Dr. Rogers’s report, his history of diabetic
mismanagement and various other problems, counsel should have concluded
that he was not competent to proceed with the guilty plea. At the initial hearing
on competency, counsel demonstrated that he had researched Claffy’s history
and presented that history to the court, stating:
Mr. Claffy observes that he is completely competent and would like
to proceed to trial . . . . Obviously I’ve kind of been put in a difficult
situation here where my client has those very understandable
wishes, having been in jail as long as he has. On the other hand,
I’ve inherited a report that was prepared prior to my appointment,
which indicates that my client may not be competent to make those
decisions. And so I guess we’re just leaving it up to the Court now
to make a determination.
Subsequent to the court ordering a full psychiatric evaluation, Dr. Gersh
evaluated Claffy and contrary to Dr. Rogers’s conclusions, found Claffy to be
competent to stand trial. This was then presented to the court. Counsel took
reasonable steps to assure that he was both following his client’s wishes, as well
as performing his legal duty by adhering to Dr. Gersh’s assessment.2 Claffy
made clear that he felt he was competent, and was aware of the plea agreement
2
Dr. Gersh’s report also noted that Claffy had not cooperated with Dr. Rogers’s earlier
competency evaluation because he was upset with the behavior of his attorney. Dr.
Gersh believed this could account for some of Dr. Rogers’s findings.
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he was signing, including a waiver of his right to file a motion in arrest of
judgment. Counsel filed the motion to set aside a competency evaluation upon
Claffy’s insistence, coupled with Dr. Gersh’s attestation of Claffy’s competence.
The record illustrates that counsel was diligent in his representation, following
both the expert report as well as his client’s wishes, and thus did not fail to
perform an essential duty in his representation.
V.
Presentence Investigation Report
Asserting that more information on his mental status should have been
procured, Claffy also asserts that counsel was ineffective for failing to request a
presentence investigation report. Iowa Code § 901.2. In light of the discussion
above, including Dr. Gersh’s report on Claffy’s competence, we find no breach of
duty.
VI.
Section 903B.2
Finally, Claffy appeals the district court’s ruling which imposed the tenyear special sentence under Iowa Code section 903B.2, arguing it violates his
constitutional rights. Claffy asserts that (1) the special sentence of Iowa Code
section 903B.2 conflicts with the sentencing provisions for an aggravated
misdemeanor, found under sections 903.1(2), 903.4, 907.7, 907.11 and 906.15;
(2) the special sentence constitutes cruel and unusual punishment; (3) placing a
person convicted of an aggravated misdemeanor in the same classification as a
Class D felon denies him equal protection; and (4) the application of Iowa Code
section 903B.2 violates the separation of powers.
Our review of constitutional claims is de novo. State v. Butler, 505 N.W.2d
806, 807 (Iowa 1993). A case recently decided by the Iowa Supreme Court,
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State v. Wade, addressed the same constitutional issues now raised by Claffy.
State v. Wade, 757 N.W.2d 618 (Iowa 2008). Applying the holdings contained in
Wade, we conclude Claffy’s constitutional challenges to his sentence all must
fail. Therefore, we affirm.
AFFIRMED.
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