STATE OF IOWA, Plaintiff-Appellee, vs. TROY HARLEY JORGENSEN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-379 / 08-0916
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TROY HARLEY JORGENSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Carlynn D.
Grupp, District Associate Judge.
The defendant appeals from the special sentence imposed pursuant to
Iowa Code section 903B.2 (Supp. 2005) following his conviction for indecent
exposure. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Paul L. Martin, County Attorney, and Steven Tynan, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
Troy Jorgensen was sentenced to a special ten-year sentence pursuant to
Iowa Code section 903B.2 (Supp. 2005) following his conviction for indecent
exposure.
He appeals, asserting ineffective-assistance-of-counsel claims.
Because we find Jorgensen‟s counsel was not ineffective, we affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Following a bench trial, the district court entered a ruling on December 27,
2006, finding Jorgensen guilty of indecent exposure.
The court sentenced
Jorgensen to a suspended one-year sentence and placed him on probation for
one year. Jorgensen appealed, and our supreme court affirmed his conviction.
See State v. Jorgensen, 758 N.W.2d 830, 832 (Iowa 2008).
In March 2008, Jorgensen‟s probation was revoked and the original
sentence was imposed.
Approximately two months later, the district court
resentenced Jorgensen to include a special ten-year sentence pursuant to
section 903B.2. This section provides:
A person convicted of a misdemeanor or a class “D” felony
under chapter 709, section 726.2, or section 728.12 shall also be
sentenced, in addition to any other punishment provided by law, to
a special sentence committing the person into the custody of the
director of the Iowa department of corrections for a period of ten
years, with eligibility for parole as provided in chapter 906. The
special sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole.
The person shall be placed on the corrections continuum in chapter
901B, and the terms and conditions of the special sentence,
including violations, shall be subject to the same set of procedures
set out in chapters 901B, 905, 906, and 908, and rules adopted
under those chapters for persons on parole. The revocation of
release shall not be for a period greater than two years upon any
3
first revocation, and five years upon any second or subsequent
revocation. A special sentence shall be considered a category “A”
sentence for purposes of calculating earned time under section
903A.2.
Iowa Code § 903B.2.
Jorgensen appeals and asserts that his counsel was ineffective for failing
to object to the imposition of the section 903B.2 sentence because it is
unconstitutional. He argues that section 903B.2 violates the cruel and unusual
punishment, equal protection, and due process clauses of the United States and
Iowa Constitutions.
II.
INEFFECTIVE ASSISTANCE OF COUNSEL.
We review ineffective-assistance-of-counsel claims de novo.
Martin, 704 N.W.2d 665, 668 (Iowa 2005).
State v.
To prevail on an ineffective
assistance of counsel claim, Jorgensen must show by a preponderance of the
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); State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007).
While
we
often
preserve
ineffective-assistance-of-counsel
claims
for
postconviction proceedings, we consider such claims on direct appeal if the
record is sufficient. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). The record
is sufficient to address Jorgensen‟s claims.
To prove that counsel breached an essential duty, a defendant must
overcome a presumption that counsel was competent and show that counsel‟s
performance was not within the range of normal competency. State v. Buck, 510
N.W.2d 850, 853 (Iowa 1994).
4
Although counsel is not required to predict changes in the law,
counsel must exercise reasonable diligence in deciding whether an
issue is worth raising. In accord with these principles, we have held
that counsel has no duty to raise an issue that has no merit.
State v. Dudley, ___ N.W.2d ___, ____ (Iowa 2009) (citations omitted). To prove
that prejudice resulted, a defendant must show there is a reasonable probability
that but for counsel‟s unprofessional errors the result of the proceeding would
have been different. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001).
Because counsel has no duty to raise a meritless issue, we will first
determine whether Jorgensen‟s constitutional violation claims have any validity.
See Dudley, ___ N.W.2d at ___. “If his constitutional challenges are meritorious,
we will then consider whether reasonably competent counsel would have raised
these issues and, if so, whether [Jorgensen] was prejudiced by his counsel‟s
failure to do so.” Id.
Jorgensen asserts that his counsel was ineffective for failing to raise
various constitutional challenges to Iowa Code section 903B.2.
Statutes are
cloaked with a presumption of constitutionality. State v. Musser, 721 N.W.2d
734, 741 (Iowa 2006); State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005). To
overcome this presumption, Jorgensen must prove that section 903B.2 is
unconstitutional beyond a reasonable doubt, which can only be accomplished by
refuting “every reasonable basis upon which the statute could be found to be
constitutional.” Seering, 701 N.W.2d at 661 (citations omitted).
A.
Cruel and Unusual Punishment.
Jorgensen first claims counsel rendered ineffective assistance by not
urging that section 903B.2 imposes cruel and unusual punishment in violation of
5
the United States and Iowa Constitutions. See U.S. Const. amend. VIII1; Iowa
Const. art. I, § 17. Our supreme court recently addressed and rejected a similar
claim under the federal constitution in State v. Wade, 757 N.W.2d 618, 624 (Iowa
2008), in which it determined: “Iowa Code section 903B.2 is not grossly
disproportionate to the acts of committing the crime of indecent exposure and
subsequently violating parole terms, and thus is not cruel and unusual
punishment.”
See State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000)
(“Generally, a sentence that falls within the parameters of a statutorily prescribed
penalty does not constitute cruel and unusual punishment. Only extreme
sentences that are „grossly disproportionate‟ to the crime conceivably violate the
Eighth Amendment.” (citation omitted)). Jorgensen‟s attempt to distinguish his
claim from that presented in Wade is unavailing, as is his suggestion that we
should
interpret
the
cruel-and-unusual-punishment
clause
in
our
state
constitution more broadly than the similarly worded clause in the federal
constitution.
Our supreme court has recognized that “[w]hen presented with sound
reasons to do so, we will not hesitate to distinguish the protections afforded by
the Iowa Constitution from those of the federal constitution.” State v. Allen, 690
N.W.2d 684, 689 (Iowa 2005).
Jorgensen, however, has offered no “sound
reasons” for distinguishing the state constitutional right to be free from cruel and
unusual punishment from the corresponding right under the federal constitution.
Nor has he identified any legal deficiency in the federal principles employed in
1
The Eighth Amendment is applicable to the states through the Fourteenth Amendment.
State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000).
6
examining a cruel-and-unusual-punishment claim.
See In re Detention of
Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000) (refusing to deviate from federal
analysis in considering state constitutional claim because appellant “suggested
no legal deficiency in the federal principles”). In addition, our supreme court has
applied the same analysis to federal and state cruel-and-unusual-punishment
claims in past cases. See, e.g., Seering, 701 N.W.2d at 669-70; Cronkhite, 613
N.W.2d at 669; Phillips, 610 N.W.2d at 843-44. We therefore conclude there is
no reason deviate from the federal analysis in considering Jorgensen‟s state
constitutional claim. Thus, pursuant to our supreme court‟s decision in Wade,
757 N.W.2d at 624, we find no violation of the prohibition against cruel and
unusual punishment under either the federal or state constitutions in this case.
B.
Equal Protection.
Jorgensen next claims counsel rendered ineffective assistance by not
urging that section 903B.2 violates the equal protection clauses of the United
States and Iowa Constitution. See U.S. Const. amend. XIV, § 1; Iowa Const. art.
1, § 6.2 The constitutional promise of equal protection “requires that „similarly
situated persons be treated alike under the law.‟” Wade, 757 N.W.2d at 624
(citations omitted).
Thus, to determine whether a statute violates equal
protection, we must first determine whether the statute makes a distinction
between similarly situated individuals. Id.; cf. Varnum v. Brien, 763 N.W.2d 862,
2
Unlike the preceding claim, neither party has argued that our equal protection analysis
under the Iowa Constitution should differ in any way from our analysis under the United
States Constitution. We therefore “decline to apply divergent analyses in this case.”
See Wade, 757 N.W.2d at 624 (using the same analysis to interpret the equal protection
clauses of the United States and Iowa Constitutions because neither party suggested
the Iowa provision should be interpreted differently than its federal counterpart).
7
884 n.9 (Iowa 2009) (questioning the usefulness of the threshold similarly
situated analysis but leaving the answer for another day).
Jorgensen initially argues that section 903B.2 violates his right to equal
protection of the law because it applies to some, but not all, sex crimes. “The
legislature enjoys broad discretion in defining and classifying criminal offenses.”
State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998).
“Thus, with respect to
sentencing statutes, the legislature is free to impose disparate punishments for
different crimes so long as the offenses are distinguishable on their elements.”
Id. “In other words, if the elements of the offenses are not the same, persons
committing the crimes are not similarly situated and, therefore, may be treated
differently for purposes of the Equal Protection Clause.” Id.
The offenses subject to the special ten-year sentence in section 903B.2
include misdemeanors and class “D” felonies under chapter 709 (sexual abuse),
section 726.2 (incest), or section 728.12 (sexual exploitation of a minor). See
Iowa Code § 903B.2.
Jorgensen was convicted of the crime of indecent
exposure, which is punishable as a serious misdemeanor under section 709.9,
thus falling within the ambit of section 903B.2. He asserts that because other
similar serious misdemeanor offenses, such as disseminating and exhibiting
obscene material to a minor (Iowa Code section 728.2), admitting a minor to
premises where obscene material is exhibited (section 728.3), and public
indecent exposure in a place of business (section 728.5), are not subject to
section 903B.2, the statute violates equal protection. We do not agree.
8
The offenses cited by Jorgensen are distinguishable on their elements
from the offense of indecent exposure. Indecent exposure requires, in relevant
part, that a person expose his or her genitals or pubes to someone other than a
spouse with the specific intent to arouse the sexual desires of either party. Iowa
Code § 709.9; Jorgensen, 758 N.W.2d at 834.
The crimes identified by
Jorgensen, on the other hand, prohibit the dissemination or exhibition of obscene
material to minors. See generally State v. Robinson, 618 N.W.2d 306, 316 (Iowa
2000) (discussing the regulation of obscene material in chapter 728). As the
State contends, those offenses, unlike the crimes subject to section 903B.2, “do
not require any sexual motivation or actual participation by the defendant in the
sex act.” See, e.g., State v. Gilmour, 522 N.W.2d 595, 598 (Iowa 1994) (stating
the “offenses of dissemination and exhibition of obscene material to minors under
section 728.2 and sexual exploitation of a minor under section 728.12(1) are
markedly different with respect to the nature of the criminal activity”).
Because “the crimes treated differently address different criminal conduct,
it is for the legislature to decide how the differing conduct will be punished.”
Ceaser, 585 N.W.2d at 199. The legislature could have rationally determined
that a classification imposing a special sentence on offenders that committed
certain sexually motivated crimes “advances the governmental objective of
protecting citizens from sex crimes.” Wade, 757 N.W.2d at 625. Given that there
is a rational basis for the legislature‟s inclusion of indecent exposure within
section 903B.2, “this court is not at liberty to declare the classification
unconstitutional.” Ceaser, 585 N.W.2d at 199; see also Reed v. Reed, 404 U.S.
9
71, 75, 92 S. Ct. 251, 253, 30 L. Ed. 2d 225, 229 (1971) (“[T]he Fourteenth
Amendment does not deny to States the power to treat different classes of
persons in different ways.”).
In the same vein, we also deny Jorgensen‟s argument that section 903B.2
violates equal protection because the statute treats sex offenders differently than
other criminal offenders. The same argument was rejected in Wade, in which the
court concluded that “sex offenders are not similarly situated to other criminal
offenders, and therefore, under this challenged classification, Iowa Code section
903B.2 does not violate equal protection.” 757 N.W.2d at 626. We find Wade
controlling in the present case and similarly reject Jorgensen‟s equal protection
challenge to section 903B.2.
Jorgensen acknowledges that section 903B.2 “need only be rationally
related to a legitimate governmental purpose.” There is no doubt that the State
has a strong interest in protecting its citizens from sex crimes. See id. at 625.
Jorgensen argues that because Iowa already has mechanisms in place for
imposing more severe punishment upon recidivist sex offenders, see Iowa Code
ch. 901A (enhanced sentencing) and ch. 229A (civil commitment for sexually
violent predators), the special sentence imposed under section 903B.2 is “not
necessary and . . . not rationally related to the problem sought to be addressed.”
This argument is unavailing.
“As long as the classificatory scheme chosen by the legislature rationally
advances a reasonable and identifiable governmental objective, we must
disregard the existence of other methods that we, as individuals, perhaps would
10
have preferred.”
omitted).
Wade, 757 N.W.2d at 625 (internal quotation and citation
As we stated, the classification found in section 903B.2 rationally
advances the State‟s objective in protecting its citizens from sex crimes. Id. Trial
counsel was not ineffective in failing to raise this meritless claim.
C.
Due Process.
Jorgensen next claims counsel rendered ineffective assistance by not
urging that section 903B.1 violates his rights to substantive due process under
the federal and state constitutions. See U.S. Const. amend. XIV; Iowa Const.
art. I, § 9.3
In a substantive due process examination, first we determine the “nature
of the individual right involved.” Seering, 701 N.W.2d at 662. If a fundamental
right is involved, we apply strict scrutiny analysis. Id.; see State v. Groves, 742
N.W.2d 90, 93 (Iowa 2007) (“Strict scrutiny requires us to determine whether the
statute is narrowly tailored to serve a compelling state interest.”).
“[O]nly
fundamental rights and liberties which are deeply rooted in this Nation‟s history
and tradition and implicit in the concept of ordered liberty qualify for such
protection.” Seering, 701 N.W.2d at 664 (citations and quotations omitted). On
the other hand, if a fundamental right is not involved, we apply a rational basis
analysis. Id.
3
Again, neither party has argued that we should utilize a different analysis under the
Due Process Clause of the Iowa Constitution, which is nearly identical in scope, import,
and purpose to the Due Process Clause of the United States Constitution. State v.
Hernandez-Lopez, 639 N.W.2d 226, 237 (Iowa 2002). Therefore, our discussion of
Jorgensen‟s due-process argument applies to both his federal and state claims. Dudley,
___ N.W.2d at ___ (using the same analysis to interpret the due process clauses of the
United States and Iowa Constitutions because neither party suggested the Iowa
provision should be interpreted differently than its federal counterpart).
11
Jorgensen contends that section 903B.2 infringes upon his “fundamental
right to liberty, privacy, and freedom from governmental restraint.” However, a
person such as Jorgensen who has been convicted of a crime subjecting him to
imprisonment has no fundamental liberty interest in freedom from extended
supervision. See Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49
L. Ed. 2d 451, 459 (1976).
[G]iven a valid conviction, the criminal defendant has been
constitutionally deprived of his liberty to the extent that the State
may confine him and subject him to the rules of its prison system so
long as the conditions of confinement do not otherwise violate the
Constitution.
Id. Section 903B.2 commits a convicted person into the custody of the director of
the Iowa Department of Corrections, where “the person shall begin the sentence
under supervision as if on parole.” “Any additional imprisonment will be realized
only if [the convicted person] violates the terms of . . . parole.”
Wade, 757
N.W.2d at 624. Additionally, “[t]he protections of substantive due process have
for the most part been accorded to matters relating to marriage, family,
procreation, and the right to bodily integrity.” Albright v. Oliver, 510 U.S. 266,
271-72, 114 S. Ct. 807, 812, 127 L. Ed. 2d 114, 122 (1994). The matter involved
here, the asserted right of a person convicted of and imprisoned for a crime to be
free from parole supervision by the state, is different in kind than the privacy and
liberty interests noted in Albright. See People v. Oglethorpe, 87 P.3d 129, 134
(Colo. Ct. App. 2004) (discussing a substantive due process challenge to
Colorado Sex Offender Lifetime Supervision Act of 1998, which requires
imposition of indefinite sentence upon sex offender, and rejecting a strict scrutiny
12
analysis because “[a]n adult offender has no fundamental liberty interest in
freedom from incarceration”).
We agree with the State that a rational basis
analysis applies here.
A rational basis standard requires us to consider whether there is “a
reasonable fit between the government interest and the means utilized to
advance that interest.” Hernandez-Lopez, 639 N.W.2d at 238. As we stated in
the preceding section, “[t]he State has a strong interest in protecting its citizens
from sex crimes.” Wade, 757 N.W.2d at 625. Victims of sex crimes suffer from
devastating effects, including physical and psychological harm. See id. at 626
(discussing that the devastating effects of sex crimes on victims provide a
rational basis for classifying sex offenders differently). Furthermore, “[t]he risk of
recidivism posed by sex offenders is „frightening and high.‟” Id. (quoting Smith v.
Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d 164, 183-84
(2003)); Seering, 701 N.W.2d at 665.
Jorgensen argues that “the assumption that the risk of recidivism posed by
sex offenders is frightening and high is unwarranted.”4 Yet, he acknowledges
that sex offenders are more likely than non-sex offenders to be rearrested for a
sex offense.5 We find there is a reasonable fit between the State‟s interest in
protecting its citizens from sex crimes and the special sentence imposed
pursuant to section 903B.2.
4
Jorgensen cites a report from the Bureau of Justice Statistics that concludes that sex
offenders are less likely than non-sex offenders to be rearrested for any offense.
5
As one court has stated, “The legislature‟s assumptions about recidivism may be
erroneous, but they are arguably correct and that is sufficient on a rational basis review
to protect the legislative choice from constitutional challenge.” State v. Radke, 657
N.W.2d 66, 75 n.38 (Wis. 2003).
13
We also reject Jorgensen‟s argument that “once the law‟s sentence has
been served, neither the public‟s antipathy nor fear are sufficient reasons to deny
fundamental rights . . . to an entire class based solely upon a possibility of a
future crime.” Section 903B.2 clearly states that a person convicted of thirddegree sexual abuse, “shall also be sentenced, in addition to any other
punishment provided by law, to a special sentence.” Jorgensen is not being
punished for “a future crime,” but rather for indecent exposure. Furthermore,
Jorgensen‟s sentence has not been served; the special sentence is part of his
sentence for indecent exposure.
We conclude that Iowa Code section 903B.2 does not violate the due
process clauses of the United States and Iowa Constitutions. Counsel did not
render ineffective assistance by not urging that it did.
III.
CONCLUSION.
We conclude that Iowa Code section 903B.2 does not violate the United
States or Iowa Constitutions as claimed.
Therefore, we conclude that
Jorgensen‟s counsel did not render ineffective assistance by not making such
claims. We affirm the sentence imposed by the district court.
AFFIRMED.
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