KENNETH LEE DOSS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-482 / 08-1512
Filed July 22, 2009
KENNETH LEE DOSS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Paul R. Huscher,
Judge.
Appeal from the district court‟s denial of postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
State Appellate Defender, for appellant.
Kenneth Doss, Mount Pleasant, appellant pro se.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, and Bryan Tingle, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Kenneth Doss appeals from the district court‟s denial of his application for
postconviction relief. He contends postconviction counsel was ineffective by not
asserting that trial counsel was ineffective for failing to challenge the
constitutionality of Iowa Code section 903B.1 (Supp. 2005). In his pro se brief,
he appears to contend there was insufficient evidence and his lawyer coerced
him into pleading guilty even though he wanted to go to trial. We affirm.
I. Background Facts and Proceedings.
In 2005, Doss was charged by trial information with sexual abuse in the
third degree, lascivious acts with a child, and indecent contact with a child.
Pursuant to a plea agreement, he pled guilty in 2007 to lascivious acts with a
child, a class C felony, and the State dismissed the other charges. The court
imposed a fine, sentenced Doss to an indeterminate term of incarceration not to
exceed ten years, but suspended the sentence, and imposed the special
sentence of lifetime parole pursuant to Iowa Code section 903B.1 to begin at the
completion of his probation. Later that year, the court found Doss violated his
probation, revoked the probation, and imposed the earlier suspended prison
sentence.
In 2008 Doss filed an application for postconviction relief, alleging his
probation was revoked without sufficient evidence of a violation, there was newlydiscovered evidence the complaining witness had lied, and his trial counsel was
ineffective in advising him to plead guilty without adequately investigating and
without challenging the admissibility of Doss‟s incriminating statements to police.
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The State moved for summary judgment. Following an unreported hearing, the
court found no genuine issue of material fact, no error in the criminal
proceedings, no default of counsel, and no basis for postconviction relief. After
noting that Doss pled guilty, filed no motion in arrest of judgment, was sentenced,
and filed no appeal, the court determined that “[p]rocedurally, claims he might
have had were waived.”
The court granted the State‟s motion for summary
judgment and dismissed Doss‟s application for postconviction relief.
II. Scope and Standards of Review.
We review the dismissal of an application for postconviction relief to
correct errors at law. Iowa R. App. P. 6.4; Brown v. State, 589 N.W.2d 273, 274
(Iowa Ct. App. 1998). Those claims alleging constitutional violations, such as
ineffective assistance of counsel, are reviewed de novo. State v. Decker, 744
N.W.2d 346, 354 (Iowa 2008).
We review challenges to the constitutionality of a statute de novo. State v.
Wade, 757 N.W.2d 618, 622 (Iowa 2008).
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, Doss must demonstrate that section 903B.1 is unconstitutional
beyond a reasonable doubt, which requires him to refute “every reasonable basis
upon which the statute could be found to be constitutional.” Seering, 701 N.W.2d
at 661 (citations omitted).
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III. Merits.
Pro Se Claims. Doss‟s pro se brief is basically in the form of a letter to
the court. It lacks a statement of issues for review, any citation to authority, any
statement how error was preserved, or any other compliance with the rules of
appellate procedure. We conclude any issues raised in Doss‟s pro se brief are
not preserved for our review, are waived for failure to cite authority, or are
otherwise not properly before this court. See Iowa R. App. P. 6.14(1)(c) (“Failure
in the brief to state, to argue or to cite authority in support of an issue may be
deemed waiver of that issue.”); State v. Hernandez-Lopez, 639 N.W.2d 226, 233
(Iowa 2002) (noting we will only review an issue raised on appeal if it was
presented to and ruled on by the district court).
In addition, Iowa Rule of
Appellate Procedure 6.14(1)(e) requires that each division of a party‟s brief begin
with a discussion of the applicable scope of review and an identification of how
error was preserved, with citation to the place in the record where the issue was
raised and decided. It has long been the rule that procedural rules apply equally
to parties who are represented by counsel and to those who are not. Pro se
parties receive no deferential treatment. See Hays v. Hays, 612 N.W.2d 817,
819 (Iowa Ct. App. 2000). Although this rule may seem harsh to a pro se litigant,
it is justified by the notion that appellate judges must not be cast in the role of
advocates for a party who fails to comply with court rules and inadequately
presents an appeal.
Ineffective Assistance of Counsel. Doss contends his postconviction
counsel was ineffective for not raising the claim that trial counsel was ineffective
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for not challenging the constitutionality of Iowa Code section 903B.1. He argues
section 903B.1 is unconstitutional because it violates substantive due process
and constitutes cruel and unusual punishment.
In order to prove his
postconviction counsel was ineffective, Doss must show counsel failed in an
essential duty and Doss was prejudiced. See State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006); accord Strickland v. Washington, 466 U.S. 668, 687-88, 694,
104 S. Ct. 2052, 2064-65, 2068, 80 L. Ed. 2d 674, 698 (1984). We may dispose
of an ineffective-assistance-of-counsel claim if appellant fails to prove either
element. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).
Counsel has no duty to raise an issue or make an objection that has no
merit. Musser, 721 N.W.2d at 752. In order to determine whether postconviction
counsel had a duty to raise a claim that trial counsel was ineffective for not
challenging the constitutionality of the statute, we must examine the underlying
constitutional claims to determine if they have merit. See State v. Dudley, ___
N.W.2d ___, ___ (Iowa 2009). “If his constitutional challenges are meritorious,
we will then consider whether reasonably competent counsel would have raised
these issues and, if so, whether [Doss] was prejudiced by his counsel‟s failure to
do so.” Id. If they lack merit, then trial counsel had no duty to raise them and
postconviction counsel had no duty to challenge trial counsel‟s performance.
A.
Substantive Due Process.
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. Id. “[O]nly fundamental rights and liberties [that] are deeply
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rooted in this Nation‟s history and tradition and implicit in the concept of ordered
liberty qualify for such protection.” Id. at 664 (citations and quotations omitted);
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.”).
If a fundamental right is not involved, we apply a rational basis
analysis. Seering, 701 N.W.2d at 664-65.
A person convicted of a crime that subjects the person 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.1 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 incarcerated for a crime to
be free from parole supervision by the state and from possible re-incarceration, is
different in kind from the privacy and liberty interests noted in Albright. See
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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 analysis because “[a]n adult offender
has no fundamental liberty interest in freedom from incarceration”). We apply a
rational basis standard to this claim.
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 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.‟” 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. We find a reasonable fit between the
State‟s interest in protecting its citizens from sex crimes and the special sentence
imposed pursuant to Iowa Code section 903B.1.
Doss argues that section 903B.1 violates due process because the special
sentence of lifetime supervision constitutes punishment for crimes not yet
committed and intrudes upon his privacy rights. He asserts that “neither the
public‟s antipathy or fear are sufficient reasons to deny fundamental rights, such
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as the right of privacy and the right to be free of government supervision, once
the law‟s sentence has been served.” However, these arguments are misplaced.
Iowa Code section 903B.1 clearly states that a person convicted of third-degree
sexual abuse, “shall also be sentenced, in addition to any other punishment
provided by law, to a special sentence.” Doss is not being punished “for crimes
not committed,” but rather for third-degree sexual abuse. Furthermore, Doss‟s
sentence has not been served; the special sentence is part of his sentence for
third-degree sexual abuse that he is currently serving. We find these arguments
without merit.
Finally, Doss argues the special sentence authorizes new terms of
imprisonment for conduct that would not be deemed criminal for others. This
argument is based on a possible future violation of parole and the potential
consequences of such a violation, including the potential for new terms of
imprisonment. This issue is not ripe for our review. See Wade, 757 N.W.2d at
628 (holding that a constitutional challenge to Iowa Code section 903B.2 based
on future parole violations was not ripe).
B. Cruel and Unusual Punishment.
The United States Constitution
forbids cruel and unusual punishment. U.S. Const. amend. VIII; see Wade, 757
N.W.2d at 623 (stating the Eighth Amendment is applicable to the states through
the Fourteenth Amendment).
This protection stems from the principle “that
punishment for [a] crime should be graduated and proportioned to [the] offense.”
Wade, 757 N.W.2d at 623 (alterations in original).
“Punishment may be
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considered cruel and unusual because it is so excessively severe that it is
disproportionate to the offense charged.” Id. (citations omitted).
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.
Substantial deference is afforded the legislature in setting
the penalty for crimes. Notwithstanding, it is within the court's power
to determine whether the term of imprisonment imposed is grossly
disproportionate to the crime charged. If it is not, no further analysis
is necessary.
State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (citations omitted).
Doss pled guilty to and was convicted of lascivious acts with a child, a
class C felony punishable by a term of imprisonment not to exceed ten years.
Iowa Code §§ 709.8(1), 902.9(4) (2005). Pursuant to Iowa Code section 903B.1
(Supp. 2005), Doss is subject to a life-time special sentence. If he violates the
terms of his parole, he might have his parole revoked and be required to serve
no more than two years upon any first revocation and no more than five years on
any second or subsequent revocation.
Id. § 903B.1 (Supp. 2005).
Doss
contends the special sentence is disproportionate to the offense.
Our analysis begins with a threshold test that measures the harshness of
the penalty against the gravity of the offense. Wade, 757 N.W.2d at 623; see
Musser, 721 N.W.2d at 749 (discussing that the Solem proportionality test is only
used only in the rare case where “a threshold comparison of the crime committed
to the sentence imposed leads to an inference of gross disproportionality”); see
also Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637,
650 (1983) (stating a court should consider the gravity of offense, harshness of
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penalty, sentences imposed on other criminals in the same jurisdiction, and
sentences imposed for commission of the same crime in other jurisdictions).
This is an objective analysis completed without considering the individualized
circumstances of the defendant or the victim in the present case. Wade, 757
N.W.2d at 624.
Iowa Code section 903B.1 imposes a special sentence upon the
conviction of a Class C felony or greater sex offense.
“[S]ex offenses are
considered particularly heinous crimes.” People v. Dash, 104 P.3d 286, 293
(Colo. Ct. App. 2004).
As noted above, victims of this offense suffer from
devastating effects, including physical and psychological harm, and sex
offenders have a “frightening and high” risk of recidivism.
See Wade, 757
N.W.2d at 626 (quoting Smith, 538 U.S. at 103, 123 S. Ct. at 1153, 155 L. Ed. 2d
at 183-84); Seering, 701 N.W.2d at 665.
Further, the offender is sentenced to parole supervision and only if the
terms of parole are violated might any additional incarceration be ordered. Iowa
Code § 903B.1; Wade, 757 N.W.2d at 624. “[S]ex offenders present a continuing
danger to the public and . . . a program providing for lifetime treatment and
supervision of sex offenders is necessary for the safety, health, and welfare of
the state.” Dash, 104 P.3d at 293; see also Wade, 757 N.W.2d at 624 (holding
that imposition of a ten-year special sentence for misdemeanor and class D
felony sex offenses, with provisions for revocation of release identical to those in
section 903B.1, does not constitute imposition of cruel and unusual punishment).
We also note the State‟s citations to other states with similar special sentences.
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See, e.g., Wis. Stat. § 939.615 (2009) (providing that a sex offender may be
sentenced to lifetime supervision); see also United States v. Moriarty, 429 F.3d
1012, 1025 (11th Cir. 2005) (“[W]e conclude that that a lifetime term of
supervised release is not grossly disproportionate to his child pornography
offenses under 18 U.S.C. § 2552A, and his Eighth Amendment claim therefore
fails.”). We conclude that Iowa Code section 903B.1 (Supp. 2005) is not grossly
disproportionate to the gravity of the offenses to which it applies and its
imposition does not constitute cruel and unusual punishment.
Next, Doss argues that even if the special sentence itself is not cruel and
unusual punishment, the requirement that he register with the state‟s sex
offender registry, together with the special sentence, cumulatively result in cruel
and unusual punishment. See Iowa Code § 692A.2(1) (2005). However, the
registration requirement pursuant to Iowa Code section 692A.2(1) is not
“punishment.” See State v. Willard, 756 N.W.2d 207, 212 (Iowa 2008) (stating
that “being subject to the residency restrictions [of Iowa Code section 692A.2A] is
not punishment”); State v. Pickens, 558 N.W.2d 396, 399-400 (Iowa 1997)
(holding that the registration requirement of Iowa Code section 692A.2(1) is
remedial, not punitive). Because it is not punitive, its imposition together with the
special sentence does not add to the “punishment” imposed. Again, we find no
violation of the prohibition against cruel and unusual punishment.
Conclusion. Having determined that Doss‟s constitutional challenges to
section 903B.1 are without merit, we conclude trial counsel had no duty to raise
the challenges and Doss was not prejudiced.
Consequently, postconviction
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counsel did not fail in an essential duty by not raising the same constitutional
challenges or by not claiming trial counsel was ineffective for that reason.
AFFIRMED.
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