STATE OF IOWA, Plaintiff-Appellee, vs. CHARLES RUSSELL, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-440 / 08-1449
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHARLES RUSSELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, William L.
Dowell, Judge.
Charles Russell appeals from the special sentence imposed upon his
convictions of third-degree sexual abuse and kidnapping. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Michael P. Short, County Attorney, and Bruce C. McDonald,
Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
2
MAHAN, P.J.
Charles Russell appeals from the imposition of a special sentence
pursuant to Iowa Code section 903B.1 (2007). He contends his counsel was
ineffective for failing to argue that imposition of the special sentence violated his
substantive due process rights. We affirm.
I. Background Facts and Proceedings.
At a plea proceeding, Russell pleaded guilty to sexual abuse in the third
degree, in violation of Iowa Code sections 709.1(3) and 709.4(2)(b), and
kidnapping in the third degree, in violation of sections 710.1(3) and 710.4, both of
which are class “C” felonies punishable by a term of imprisonment not to exceed
ten years. The district court imposed consecutive sentences and imposed a
special sentence pursuant to Iowa Code sections 903B.1 (life-time special
sentence for class “C” felony), whereby if he violates the terms of his parole he
will be sentenced to additional imprisonment for a term not to exceed two years
for a first offense and not to exceed five years for a second offense. 1 On appeal,
1
Section 903B provides:
1. A person convicted of a class “C” felony or greater offense
under chapter 709, or a class “C” felony under 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 the rest of the person‟s life, 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 chapter 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
3
Russell contends trial counsel was ineffective in failing to assert section 903B.1
violates the federal and state constitutional provisions regarding substantive due
process.2
II. Ineffective Assistance of Counsel.
Claims of ineffective assistance of counsel have their basis in the Sixth
Amendment to the United States Constitution, and we therefore conduct a de
novo review. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
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 Russell‟s ineffective-assistance-ofcounsel 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 issues now asserted and, if so, whether Russell 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
revocation. A special sentence shall be considered a category “A”
sentence for purposes of calculating earned time under section 903A.2.
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. State v. Dudley, ___ N.W.2d ___, ___ (Iowa 2009).
4
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 issues Russell claims his counsel should have raised. Id. If
there is merit to the issues, we must then decide whether counsel‟s action fell
outside the normal range of competency expected of criminal defense attorneys.
Id.
If we conclude counsel failed to perform an essential duty, we will then
proceed to determine whether Russell was prejudiced by such a failure. Id.
Russell contends section 903B.1 violates his right of substantive due
process. In State v. Wade, 757 N.W.2d 618, 623-28 (Iowa 2008), our supreme
court rejected various constitutional challenges to Iowa section 903B.2 (ten-year
special sentence), finding that section 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.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, Seering, 701 N.W.2d at 661, and to overcome the
presumption, “[t]he challenger is required to refute all reasonable bases upon
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
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
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).
Russell is challenging the imposition of extended parole following
incarceration. He claims section 903B.1 infringes upon his “fundamental right to
liberty, privacy, and freedom from governmental restraint.” The State responds
6
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
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.”); see also Lyon v. State, 404 N.W.2d 580,
583 (Iowa Ct. App. 1987) (noting that “[o]nce a valid conviction has been entered,
the defendant has been constitutionally deprived of his liberty to be conditionally
released”).
Consequently, we reject Russell‟s claim that section 903B.1
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”).
7
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
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 665.4
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.1.
Because there is a rational basis for a special sentence imposed pursuant
to Iowa Code section 903B.1, we find there is no merit to Russell‟s claim that the
provision violates his substantive due process rights. Russell‟s trial counsel was
not ineffective in failing to raise an issue that has no merit.
4
Westeen, 591
Russell argues that “the assumption that the risk of recidivism posed by sex offenders
is frightening and high is unwarranted,” citing 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. 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).
8
N.W.2d at 207.
Consequently, Russell‟s claim of ineffective assistance of
counsel fails, and we therefore affirm his sentence.
AFFIRMED.
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