[Copyrighted Material Omitted]
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge. The defendant filed a postconviction relief action claiming his guilty plea was invalid.
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, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, and Tracy L. Welsh, 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.
WIGGINS, Justice. All justices concur except Mansfield and Waterman, JJ., who concur specially, and Zager, J., who dissents.
A defendant brings a claim alleging his trial counsel provided ineffective assistance of counsel related to the defendant's guilty plea to the crime of criminal transmission of the human immunodeficiency virus (HIV) in violation of Iowa Code section 709C.1 (2007). The district court disagreed and dismissed the defendant's postconviction relief action. The defendant appealed and we transferred the case to our court of appeals. The court of appeals affirmed. On further review, we find the guilty plea record did not contain a factual basis to support the plea. We also find the court in this case cannot use the rule of judicial notice to establish the factual basis in the guilty plea record. Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual's viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. Accordingly, we vacate the decision of the court of appeals and reverse the judgment of the district court. We also remand the case with directions.
I. Background Facts and Proceedings.
The petitioner in this case, Nick Rhoades, was diagnosed with HIV in 1998. From 1999 to 2005, Rhoades did not receive treatment for his HIV diagnosis. In 2005, Rhoades began consistently receiving medical care for his HIV diagnosis from the University of Iowa Hospitals and Clinics. Every three to six months during this time, Rhoades received treatment. In the spring of 2008, Rhoades's doctor informed him his HIV viral load was nondetectable.
The events of this case turn on an encounter between Rhoades and A.P. on June 26, 2008. On that evening, Rhoades met A.P. on a social networking site. Rhoades and A.P. began conversing, and subsequently A.P. invited Rhoades to his home in Cedar Falls. Rhoades accepted. A.P. understood Rhoades to be HIV negative, in part because Rhoades's online profile listed him as HIV negative.
In Cedar Falls, Rhoades and A.P. engaged in consensual unprotected oral and
protected anal sex. Several days later, A.P. learned Rhoades was potentially HIV positive. A.P. contacted the police, and subsequently the State charged Rhoades with criminal transmission of HIV in violation of Iowa Code section 709C.1.
Rhoades engaged the services of an attorney to defend him in this criminal matter. This was the attorney's first case involving Iowa Code section 709C.1. On May 1, 2009, Rhoades pled guilty to one count of criminal transmission of HIV. The district court accepted the plea. At the sentencing hearing, the district court sentenced Rhoades to a term of imprisonment not to exceed twenty-five years with life parole and required Rhoades be placed on the sex offender registry. The district court retained jurisdiction. Rhoades filed a motion to reconsider the sentence. On September 11, the district court suspended Rhoades's twenty-five year sentence and placed Rhoades on probation for five years. Rhoades did not file a direct appeal.
On March 15, 2010, Rhoades filed an application for postconviction relief pursuant to Iowa Code chapter 822. Rhoades alleged his trial counsel was ineffective for allowing Rhoades to plead guilty by failing to challenge the factual basis of the plea and failing to complete a proper investigation before the plea hearing. The district court denied Rhoades's application for postconviction relief. Rhoades appealed and we transferred the case to our court of appeals. The court of appeals affirmed. Rhoades requested further review, which we granted.
We must determine if Rhoades received ineffective assistance of counsel when he pled guilty to criminal transmission of HIV in violation of Iowa Code section 709C.1.
III. Standard of Review.
Ineffective-assistance-of-counsel claims are grounded in the Sixth Amendment. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We review ineffective-assistance-of-counsel claims de novo. Id. We review issues of statutory interpretation for correction of errors at law. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
IV. Elements of the Crime of Criminal Transmission of HIV.
The legislature codified the crime of criminal transmission of HIV in Iowa Code section 709C.1. The Code provides in relevant part:
1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person's human immunodeficiency virus status is positive, does any of the following:
a. Engages in intimate contact with another person.
. . . .
2. For the purposes of this section:
a. " Human immunodeficiency virus " means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome.
b. " Intimate contact " means 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.
. . . .
4. This section shall not be construed to require that an infection with the human immunodeficiency virus has occurred for a person to have committed criminal transmission of the human immunodeficiency virus.
5. It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.
Iowa Code § 709C.1. Therefore, to establish the crime of criminal transmission of HIV the State must prove the following elements: (1) " the defendant engaged in intimate contact with [the victim]", (2) at the time of intimate contact the defendant's HIV status was positive, (3) the defendant knew his HIV status was positive, and (4) " [a]t the time of the intimate contact, [the victim] did not know that the defendant had a positive HIV status." State v. Stevens, 719 N.W.2d 547, 549 (Iowa 2006). It is also incumbent on the district court to instruct the jury on the definition of " intimate contact" because the legislature has specially defined this phrase in the Iowa Code. See id. (recognizing the jury instruction also defined intimate contact to mirror the statutory definition). For purposes of section 709C.1, intimate contact requires " (1) there was an intentional exposure of the body of one person to a bodily fluid of another person, and (2) this occurred in a manner that could result in the transmission of . . . HIV." Id. at 550.
In considering the definition of " intimate contact," we have previously defined " could" in the criminal transmission statute as requiring " that transmission of . . . HIV from the infected person to the exposed person was possible considering the circumstances." State v. Keene, 629 N.W.2d 360, 365 (Iowa 2001). Although there are multiple definitions of " possible," we have not previously elaborated on what " possible" means here. First, " possible" may mean something " that may or may not occur." Webster's Third New International Dictionary 1771 (unabr. ed. 2002). This definition is broad, and some courts have recognized the word " possible" in certain contexts may mean allowing any likelihood of occurrence, no matter how remote. See Pittsburgh, Cincinnati, Chi. & St. Louis Ry. v. Indianapolis, Columbus, & S. Traction Co., 169 Ind. 634, 81 N.E. 487, 488 (Ind. 1907) (recognizing a distinction between the word " practicable," which requires reasonableness, and the word " possible" ); Gustafson v. Benda, 661 S.W.2d 29, 31 (Mo. Ct. App. 1982) (" 'Possible' encompasses the entire range of probability from highly improbable to almost sure . . . ." ), rev'd on other grounds, 661 S.W.2d 11 (Mo. 1983).
Second, " possible" may mean " having an indicated potential by nature or circumstances." Webster's Third New International Dictionary 1771. This definition considers the reality of a thing occurring, rather than a theoretical chance. In Keene, we linked possibility to the circumstances present. See Keene, 629 N.W.2d at 365. We find useful this commentary by the Eleventh Circuit Court of Appeals:
The potential for legal liability must be reasonable, not merely theoretical. In considering possible state law claims, possible must mean more than such a possibility that a designated residence can be hit by a meteor tonight. That is possible. Surely, as in other instances, reason and common sense have some role.
Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (emphasis omitted) (citations omitted) (internal quotation marks omitted). Some courts have recognized an inherent reasonableness consideration in construing the meaning of " possible" in the context of certain statutes. See Topeka City Ry. v. Higgs,
38 Kan. 375, 16 P. 667, 674 (Kan. 1888) (recognizing the word " possible" meant capable of being done, among other definitions, yet determining in the context of the statute the phrase required reasonable precautions); Sullivan v. Mountain States Power Co., 139 Ore. 282, 9 P.2d 1038, 1047 (Or. 1932) (determining the statutory language " every possible effort" did not require actions that were neither reasonable nor practicable); Commonwealth v. Allied Bldg. Credits, Inc., 385 Pa. 370, 123 A.2d 686, 691 (Pa. 1956) (recognizing the definition of " possible" meant capable of happening as contrasted with impossibility, however finding within the context of the statute the word carried a notion of reasonableness).
We find the second definition is more appropriate in the context of this criminal statute for at least two reasons. First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation. See Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 383, 101 N.W.2d 167, 172 (1960) (recognizing expert opinions were admissible when the expert was giving testimony that a causal relation was possible, likely, or probable).
Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant's actions caused something that can only theoretically occur. Causation must be reasonably possible under the facts and circumstances of the case to convict a person of criminal transmission of HIV in violation of Iowa Code section 709C.1.
Thus, to establish a factual basis for Rhoades's guilty plea, the record must establish the four elements of the crime together with the two requirements of the statutory definition of intimate contact.
V. Attacking a Guilty Plea.
We have recognized at least two ways a defendant may attack his or her guilty plea. First, a defendant may attack his or her guilty plea on the ground the defendant did not receive effective assistance of counsel as required under the Sixth Amendment to the United States Constitution because there was no factual basis to support the defendant's guilty plea. See State v. Finney, 834 N.W.2d 46, 54 (Iowa 2013). Second, a defendant may show he or she did not make a knowing and intelligent waiver of a constitutional right when pleading, even if overwhelming evidence shows a factual basis exists. Id. at 55. Failure to make a knowing and ...