October 2, 2013
NICK RHOADES, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.
Nick Rhoades appeals from the district court's denial of his application for postconviction relief.
Christopher R. Clark and Scott A. Schoettes of Lambda Legal Defense & Education Fund, Inc., Chicago, Illinois, and Joseph C. Glazebrook and Dan L. Johnston of Glazebrook & Moe, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee State.
Earl Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, and Tracy Welsh of HIV Law Project, New York, New York, for amicus curiae National Alliance of State and Territorial AIDS Directors, The Center For HIV Law and Policy, and HIV Law Project.
Heard by Vaitheswaran, P.J., and Doyle, J., and Goodhue, S.J. [*]
Nick Rhoades appeals from the district court's denial of his application for postconviction relief following his 2009 plea of guilty to criminal transmission of human immunodeficiency virus (HIV), contending his trial counsel was ineffective for permitting him to plead guilty to a charge which lacked a factual basis. Upon our review, we affirm the order denying Rhoades' application for postconviction relief.
I. Background Facts and Proceedings
Nick Rhoades is HIV positive. He met A.P. in an online chat room. After conversing via computer for an hour or so, they decided Rhoades would drive from his home in Waverly to A.P.'s home in Cedar Falls so they could meet in person. Once there, Rhoades and A.P. talked, had drinks, and ultimately engaged in consensual sexual acts. These acts included A.P. performing unprotected oral sex on Rhoades, in which Rhoades's penis penetrated A.P.'s mouth, and protected anal intercourse, in which Rhoades' penis penetrated A.P.'s anus. Although Rhoades was aware of his HIV status and was receiving medical treatment for his condition, he either withheld or misrepresented his HIV status to A.P.
Thereafter, A.P. became aware of Rhoades's HIV status and contacted the police. Rhoades was charged by trial information with criminal transmission of HIV, in violation of Iowa Code section 709C.1 (2007). He entered a plea of guilty, which the court accepted.
The court sentenced Rhoades to twenty-five years in prison and lifetime registration as a sex offender. Several months later, the court reconsidered Rhoades's sentence, and it suspended his prison sentence and placed him on supervised probation for five years. Rhoades did not appeal his conviction.
Rhoades filed an application for postconviction relief, raising claims of ineffective assistance of trial counsel and essentially alleging there was no factual basis to support his plea of guilty. Following a hearing, the court denied Rhoades's application.
Rhoades appeals that ruling, again asserting his trial counsel was ineffective for permitting him to plead guilty to a charge which lacked a factual basis. We review his ineffective-assistance-of-counsel claims de novo. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
To prevail on his claim of ineffective assistance of counsel, Rhoades must show counsel (1) failed to perform an essential duty and (2) prejudice resulted. State v. Fountain, 786 N.W.2d 260, 265-66 (Iowa 2010). When trial counsel permits a defendant to plead guilty and waive the right to file a motion in arrest of judgment absent a factual basis to support the guilty plea, counsel violates an essential duty, and prejudice is presumed. State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011).
Before accepting a guilty plea, the district court must first determine the plea has a factual basis, and that factual basis must be disclosed in the record. State v. Finney, 834 N.W.2d 46, 61-62 (Iowa 2013); see Iowa R. Crim. P. 2.8(2)(b). We determine whether a factual basis existed by considering "the entire record before the district court" at the guilty plea hearing. Finney, 834 N.W.2d at 62.
On appeal, Rhoades raises two related challenges to his plea of guilty. He contends his trial counsel was ineffective for permitting him to plead guilty "to a violation of [section] 709C.1 when there was, in fact, no factual basis for the charge." Rhoades also contends his trial counsel was ineffective for allowing the district court to accept his guilty plea without establishing during the plea colloquy that he understood an element of the crime he contends the State was required to prove—i.e., that he "intentionally exposed his bodily fluids to the body part of another in a manner that could result in the transmission of HIV."
A violation of section 709C.1 occurs if a "person, knowing that the person's human immunodeficiency virus status is positive, . . . [e]ngages in intimate contact with another person." Iowa Code § 709C.1(1)(a). Section 709C.1(2)(b) defines "intimate contact" as "the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus." As our supreme court has stated, "The obvious purpose of this statute is the protection of public health by discouraging the transmission of the AIDS virus." State v. Musser, 721 N.W.2d 734, 744 (Iowa 2006). The court explained:
Considering the ease of transmitting AIDS and HIV through sexual penetration and the absence of any "cure, " the state's interest in protecting the public health, safety, and general welfare of its citizenry becomes extremely significant. Although the statute may significantly infringe defendant's individual interests in remaining silent, the state's interest to compel her to disclose that she is HIV infected before engaging in sexual penetration is undeniably overwhelming.
Id. (quoting People v. Jensen, 586 N.W.2d 748, 759 (Mich. Ct. App. 1998)).
It is a well-known fact that an infected individual may possibly transmit the HIV through unprotected sexual intercourse with his or her partner. . . . HIV may be transmitted through contact with an infected individual's blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus.
State v. Keene, 629 N.W.2d 360, 366 (Iowa 2001) (internal citation omitted). Sexual intercourse may be committed through oral sex, and oral sex is a well-recognized means of transmission of HIV. State v. Stevens, 719 N.W.2d 547, 551 (Iowa 2006). The person exposed to HIV need not become infected with the virus in order for the infected person to be prosecuted under section 709C.1(4). "Thus, for a person to be guilty of violating section 709C.1, it must simply be shown that transmission of the HIV from the infected person to the exposed person was possible considering the circumstances." Keene, 629 N.W.2d at 365 (emphasis in original). However, if the exposed person was aware of the infected person's HIV positive status, an affirmative defense exists. Iowa Code § 709C.1(5).
The minutes of testimony indicate Rhoades and A.P. engaged in consensual unprotected oral intercourse in which Rhoades's penis penetrated A.P.'s mouth, and consensual protected anal intercourse in which Rhoades's penis penetrated A.P.'s anus. The minutes further indicate that at the time of these acts, Rhoades was aware he was HIV positive, and he did not disclose his HIV status to A.P.
The crux of Rhoades's claims is that the evidence against him does not support a finding he "intentionally exposed" his bodily fluid to A.P. To support his cause, Rhoades argues he did not ejaculate during oral intercourse,  which demonstrated his intent not to expose his bodily fluid to A.P. in a manner that could transmit HIV. Furthermore, he points to the fact that he wore a condom during anal intercourse with A.P., which "demonstrates" his intent to "prevent the exchange of bodily fluids, " and in any event, "it is not even clear that any ejaculation occurred."
Rhoades's claim is similar to a claim raised in Keene. In that case, Keene engaged in consensual, unprotected sexual intercourse with C.J.H. Keene, 629 N.W.2d at 362. Keene claimed he "never intended to expose C.J.H. to the HIV." Id. at 363. The basis for that claim appears to be that Keene either did not ejaculate, or if he did, it was outside C.J.H.'s body. Id. at 366. Nevertheless, the Keene court concluded that "any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected." Id. at 365; see also Stevens, 719 N.W.2d at 552 (and cases cited therein including Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072, 1101 (D. Ariz. 1999), aff'd, 238 F.3d 430 (9th Cir. 2000) ("It is common knowledge that engaging in sexual intercourse and oral sex without the use of condoms place people at risk for sexually transmitted diseases, including HIV/AIDS.")). In construing section 709C.1, the court declared that a claim of non-ejaculation is irrelevant. Keene, 629 N.W.2d at 366 ("[A]ny claim by Keene that he did not ejaculate . . . or that if he did ejaculate, he ejaculated outside C.J.H.'s body, is irrelevant." (citing State v. Stark, 832 P.2d 109, 114 (Wash.Ct.App. 1992))). Thus, the decision to engage in unprotected sex with another person generally evidences one's intent to expose that person to bodily fluid.See generally id.
Applying the court's reasoning in Keene to the facts of this case, that Rhoades may not have ejaculated during the unprotected oral sex is irrelevant. See id. Here, the minutes of testimony unequivocally establish Rhoades engaged in unprotected oral sex with A.P., and consequently, Rhoades's claim that he did not ejaculate provides no support to his argument there was a lack of a factual basis regarding the "intent element" of "intimate contact." See id. We therefore conclude a factual basis existed to support Rhoades's plea of guilty.Accordingly, Rhoades's trial counsel was not ineffective in permitting Rhoades to plead guilty, and we affirm the order denying Rhoades's application for postconviction relief.