STATE OF IOWA, Plaintiff-Appellee, vs. JEREMY FRANK JENKINS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-415 / 08-0537
Filed July 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEREMY FRANK JENKINS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
Jeremy Frank Jenkins appeals from the special sentence imposed upon
his conviction of assault with intent to commit sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and Laura
Roan, Assistant Attorneys General, and Timothy N. Schott, County Attorney, for
appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
2
MAHAN, P.J.
Jeremy Frank Jenkins appeals from the special sentence imposed upon
his conviction of assault with intent to commit sexual abuse. We affirm.
I. Background Proceedings. Jeremy Frank Jenkins was convicted of
kidnapping in the third degree and assault with intent to commit sexual abuse
following a jury trial. He admitted to having two prior felonies and was thus
sentenced as a habitual offender on the kidnapping conviction, receiving a term
of incarceration not to exceed fifteen years. He received a two-year term for the
assault with intent to commit sexual abuse conviction and a ten-year special
sentence pursuant to Iowa Code section 903B.2 (Supp. 2005).1 Jenkins now
appeals, contending his trial counsel was ineffective in failing to challenge the
constitutionality of section 903B.2.
II. Ineffective Assistance of Counsel. Claims of ineffective assistance
of counsel have their basis in the Sixth Amendment to the United States
1
Iowa Code section 903B.2 provides as follows:
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 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.
3
Constitution, and we therefore conduct a de novo review. State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008).
Jenkins contends trial counsel was ineffective in failing to assert that
section 903B.2 violates his right of substantive due process.2 To establish a
claim of ineffective assistance of counsel, a defendant must prove by a
preponderance of the evidence (1) counsel failed to perform an essential duty
and (2) prejudice resulted. Id. A defendant‟s failure to prove either element is
fatal to the claim. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Ordinarily,
we preserve ineffective-assistance claims for postconviction proceedings. See
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). However, we find the record
adequate to address Jenkins‟s ineffective-assistance-of-counsel claims on direct
appeal. See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
Our task is to determine whether defense counsel breached an essential
duty by failing to raise the issue and, if so, whether Jenkins was prejudiced by
the failure.
Maxwell, 743 N.W.2d at 195. We start with a presumption that
counsel acted competently.
Westeen, 591 N.W.2d at 210.
In general, trial
counsel is not incompetent in failing to pursue an issue that is without merit. See
id. at 207. Thus, our first step is to consider whether there is any merit to the
issue Jenkins claims his counsel should have raised. Id. If there is merit to this
issue, we must then decide whether counsel‟s action fell outside the normal
2
U.S. Const. amend. XIV; Iowa Const. art. I, § 9. The due process clauses of the United
States and Iowa Constitutions are nearly identical in scope, import, and purpose. See
State v. Hernandez-Lopez, 639 N.W.2d 226, 237 (Iowa 2002). Where neither party
contends the Iowa Constitution should be treated differently than its federal counterpart,
we use the same analysis for both statutes. State v. Dudley, ___ N.W.2d ___, ___ (Iowa
2009). In this case, Jenkins does not suggest we should utilize a different analysis
under the Iowa Constitution, and therefore, our discussion of his due process argument
applies to both his federal and state claims.
4
range of competency expected of criminal defense attorneys. Id. If we conclude
that counsel failed to perform an essential duty, we will then proceed to
determine whether Jenkins was prejudiced by such a failure. Id.
Our supreme court has recently ruled upon various constitutional
challenges to section 903B.2. See State v. Wade, 757 N.W.2d 618, 623-28
(Iowa 2008) (finding section 903B.2 does not constitute cruel and unusual
punishment and does not violate the Equal Protection Clause or the separationof-powers doctrine).
However, it has not yet addressed a substantive due
process challenge to that section.3
Substantive due process “prevents the government from interfering with
rights implicit in the concept of ordered liberty.” State v. Seering, 701 N.W.2d
655, 662 (Iowa 2005) (citations omitted). In evaluating any statutory challenge,
“we must remember that statutes are cloaked with a presumption of
constitutionality.” State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006); Seering,
701 N.W.2d at 661. The challenger must prove the unconstitutionality beyond a
reasonable doubt and to overcome the presumption, “[t]he challenger is required
to refute all reasonable bases upon which the statute could be declared
constitutional.” Gonzalez, 718 N.W.2d at 307.
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 a strict scrutiny analysis. See State v. Groves, 742
N.W.2d 90, 92 (Iowa 2007) (“Strict scrutiny requires us to determine whether the
3
Wade initially raised a substantive due process challenge to section 903B.2, but waived
the argument on appeal. Wade, 757 N.W.2d at 622-23.
5
statute is narrowly tailored to serve a compelling state interest.”).
“Only
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 (internal quotations and citations
omitted). On the other hand, if a fundamental right is not involved, we apply a
rational basis analysis. Id. at 665.
Our supreme court has stated:
It is ultimately our duty to ensure that claims that constitutional
rights have been violated are properly considered. This duty arises
in part from our related duty to avoid constitutional questions not
necessary to the resolution of an appeal.
Both these
considerations create a general requirement that claims involving
fundamental rights must identify the claimed right with accuracy
and specificity so that our analysis proceeds on appropriate
grounds. In the absence of a sufficient presentation of a claimed
right, we have not hesitated in the past to reconsider and realign a
party‟s arguments to properly address the true constitutional
question presented.
Id. at 663 (emphasis added) (citations omitted).
Pursuant to section 903B.2, Jenkins is subject to a ten-year special
sentence upon completion of his two-year term for assault with intent to commit
sexual abuse. “The person shall begin the sentence under supervision as if on
parole.” Iowa Code § 903B.2. Jenkins is challenging the imposition of extended
parole following incarceration.
He claims section 903B.2 infringes upon his
“fundamental right to liberty, privacy, and freedom from governmental restraint.”
The State responds by asserting the interest at hand is “whether the defendant
has a fundamental right to be free from punishment following entry of conviction.”
[P]arolees are on the “continuum” of state-imposed
punishments.
On this continuum, parolees have fewer
expectations of privacy than probationers, because parole is more
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akin to imprisonment than probation is to imprisonment. As this
Court has pointed out, parole is an established variation on
imprisonment of convicted criminals. . . . The essence of parole is
release from prison, before the completion of sentence, on the
condition that the prisoner abides by certain rules during the
balance of the sentence. In most cases, the State is willing to
extend parole only because it is able to condition it upon
compliance with certain requirements.
Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 2198, 165 L. Ed. 2d
250, 258 (2006) (internal quotations and citations omitted). A parolee has no
fundamental liberty interest in freedom from extended supervision. 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.”). Consequently, we reject Jenkins‟s claim
that section 903B.2 impinges upon a fundamental right.
Cf. People v.
Oglethorpe, 87 P.3d 129, 134 (Colo. Ct. App. 2003) (rejecting strict scrutiny for
substantive due process challenge to Colorado Sex Offender Lifetime
Supervision Act of 1998, which requires imposition of indefinite sentence upon
sex offender because “[a]n adult offender has no fundamental liberty interest in
freedom from incarceration”).
We conclude the limited privacy and liberty interests at issue are entitled
to only rational basis review. 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.” State v. Hernandez-Lopez, 639 N.W.2d
226, 237 (Iowa 2002). As discussed by our supreme court, “[t]he State has a
7
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.‟” Wade, 757 N.W.2d at 626 (quoting Smith v. Doe, 538
U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d 164, 184 (2003)); Seering,
701 N.W.2d at 665.
Jenkins 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.
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). We find there
is a reasonable fit between the State‟s interest in protecting its citizens from sex
crimes and the extended supervision required under section 903B.2.
Because there is a rational basis for the special sentence imposed
pursuant to Iowa Code section 903B.2, we find there is no merit to Jenkins‟s
claim that the provision violates his substantive due process rights. Jenkins‟s
trial counsel was not ineffective in failing to raise an issue that is without merit.
4
Jenkins 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.
However, Jenkins acknowledges that sex offenders are more likely than non-sex
offenders to be rearrested for a sex offense.
8
Consequently, Jenkins‟s claim of ineffective assistance of counsel fails, and we
therefore affirm his sentence.
AFFIRMED.
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