December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
NAPOLEON MBONYUNKIZA, Defendant-Appellant.
from the Iowa District Court for Polk County, Karen A.
Mbonyunkiza appeals following his guilty pleas to sexual
abuse in the third degree, neglect of a dependent person,
dependent adult abuse, and failure to appear. AFFIRMED.
L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., McDonald, J., and Mahan,
Mbonyunkiza appeals following his guilty pleas to sexual
abuse in the third degree, neglect of a dependent person,
dependent adult abuse, and failure to appear. Mbonyunkiza
contends (1) the district court erred in finding him
competent to stand trial; (2) his trial counsel was
ineffective in failing to challenge his plea as unknowing,
involuntary, and uninformed, or without a factual basis; (3)
his sentences violate double jeopardy and the merger rule;
and (4) the district court abused its discretion in
sentencing him. We affirm.
Background Facts and Proceedings
mentally and physically incapacitated woman living at a Des
Moines-area group home, was treated at Mercy Hospital for
weight loss, gagging, and digestive issues. It was discovered
D.B. was twenty weeks pregnant. The pregnancy was terminated
per the direction of D.B.'s guardian. Police sought DNA
samples of all males with access to D.B., including
Mbonyunkiza, a caretaker for D.B. at the group home. While
paternity testing could exclude 99.9% of the male population,
it could not exclude Mbonyunkiza as the fetus' father.
2010, the State filed a trial information (FECR237656)
charging Mbonyunkiza with sexual abuse in the third degree,
neglect of a dependent person, and dependent adult abuse.
Mbonyunkiza was arrested, a preliminary hearing was
scheduled, and he was released. After Mbonyunkiza failed to
appear for his preliminary hearing, police discovered he had
fled to Uganda. The State then filed a trial information
(FECR238083) charging Mbonyunkiza with failure to appear.
Mbonyunkiza subsequently returned to the United States and
was taken into custody to face the pending charges. The issue
of competency was raised by defense counsel, and the district
court ordered Mbonyunkiza to be evaluated by Dr. Tracy
Thomas. The State moved for a separate evaluation, and the
court ordered Mbonyunkiza to be evaluated by Dr. James
Dennert. Both experts opined Mbonyunkiza was competent to
stand trial. Following a competency hearing, the court
concluded Mbonyunkiza was competent to stand trial.
subsequently pled guilty as charged to each count.
Mbonyunkiza's attorney informed the court Mbonyunkiza
intended to argue for a favorable sentence. The court
accepted Mbonyunkiza's pleas and sentenced him to the
maximum terms of imprisonment-ten years on two counts and
five years on two counts-to run consecutively, for a total of
appeals. Additional facts will be set forth below as relevant
to the issues raised on appeal.
challenges the district court's finding that he was
competent to stand trial. Mbonyunkiza contends his alleged
incompetence to stand trial implicates his due process
rights. "[T]he constitutional basis of a claim the
defendant is not competent to be tried requires a de novo
review on appeal." See State v.
Johnson, 784 N.W.2d 192, 194 (Iowa 2010).
to stand trial is governed by Iowa Code section 812.3 (2015),
If at any stage of a criminal proceeding the defendant or the
defendant's attorney, upon application to the court,
alleges specific facts showing that the defendant is
suffering from a mental disorder which prevents the defendant
from appreciating the charge, understanding the proceedings,
or assisting effectively in the defense, the court shall
suspend further proceedings and determine if probable cause
exists to sustain the allegations. The applicant has the
burden of establishing probable cause.
presume a defendant is competent to stand trial. The
defendant has the burden of proving his or her incompetency
to stand trial by a preponderance of the evidence. If the
evidence is in equipoise, the presumption of competency
prevails." Id. at 194 (citation omitted).
September 2013, defense counsel and Mbonyunkiza requested a
competency evaluation pursuant to section 812.3. Defense
counsel became concerned about Mbonyunkiza's competence
after discussions with Mbonyunkiza. Mbonyunkiza reported he
heard voices, someone cast "spells" on him, and
"sorcery" caused him to do bad things. Mbonyunkiza
related that he grew up in Rwanda, where he witnessed brutal
murders of his family members. He had been treated for
posttraumatic stress and depression.
district court granted the request for a competency
evaluation. The defense's evaluator, Dr. Tracy Thomas,
submitted an initial report in October 2013, stating "a
definitive opinion [as to Mbonyunkiza's competence] could
not be made due to lack of information." During that
hearing, the State requested a second evaluation, and the
court granted the request.
State's evaluator, Dr. James Dennert, conducted an
interview of Mbonyunkiza and reviewed the trial information,
minutes of testimony, and Dr. Thomas' October 2013
report. Dr. Dennert's December 16, 2013 evaluation
On the basis of the information provided to me, and my
interview of Mr. Mbonyunkiza, it is my medical opinion that
he does not suffer a mental illness that renders him
incompetent to stand trial. Specifically, he does not suffer
a mental illness that prevents him from understanding the
charges against him, or that prevents him from being able to
understand the court proceedings, or that prevents him from
assisting his attorney in his defense.
While Mr. Mbonyunkiza said that he did not know or understand
the charges against him, he seemed to understand quite well
when I told him, in general, what he was accused of. He
denied that he had done what he is charged with, and
maintained his denial throughout our interview. He also
indicated that he was trying to learn about how trials work,
and that the major impediment to his current understanding is
his poor English. He even said that, if he could have the
trial explained to him in French that this would help
Mr. Mbonyunkiza's claimed lack of memory for his trip to
Uganda and subsequent return to the United States is not
consistent with any known psychiatric or neurological
syndrome. He is able to provide very good history for other
aspects of his life. It is my opinion that Mr. Mbonyunkiza
does, in fact, recall going to Uganda, but that he is falsely
claiming not to recall. His lack of memory is clearly
It is also my opinion that Mr. Mbonyunkiza's reports of
hearing "voices" are self-serving as well. During
my interview, he at no time appeared to be attending to inner
stimuli. I am unaware of any reports of his behavior while in
jail that would suggest psychotic symptoms. I am unaware of
any history of psychosis in Mr. Mbonyunkiza; his reported
treatment in Rwanda and Uganda appear to be for depression,
or possibly posttraumatic stress, but not psychosis.
Mr. Mbonyunkiza does report current symptoms of a depressive
nature. He complains of sleep problems, appetite disturbance,
and decreased energy. He was also tearful at times during our
interview. These symptoms are not surprising in someone
jailed for the crimes that Mr. Mbonyunkiza is accused of
committing. Taken together, they are consistent with a
diagnosis of Adjustment Disorder with Depressed Mood.
On the basis of all the information provided to me and my
interview with Mr. Mbonyunkiza, it is my medical opinion that
he is competent to stand trial. He does not suffer any
psychiatric or mental illness that renders him incompetent.
The only potential obstacle to his participation in his trial
is language, and that can be addressed by providing him with
a French interpreter, who could explain the charges, the
basic workings of the court system, and provide ongoing
interpretation during trial.
Dr. Dennert's report was submitted-and after conducting
another interview of Mbonyunkiza and reviewing additional
materials-Dr. Thomas submitted an "update[d]"
report opining Mbonyunkiza was competent to stand trial. Dr.
Thomas' January 17, 2014 evaluation opined:
Based on the information available to this evaluator and on
the two interviews conducted with the defendant, this
evaluator was not able to find conclusive evidence of a
mental disorder that would preclude the defendant from
appreciating his charges, understanding the proceedings
against him, or assisting in his defense. Although he
reported at first interview a history of mental health
problems, his report of those issues has not been consistent
and available records do not show that he has ever been
observed to have a major mental illness that would be
expected to impact competence. Further, his presentation
during interviews with this evaluator was not consistent with
a major mental illness, such as a bipolar disorder or a
psychotic disorder. Mr. Mbonyunkiza may have [posttraumatic
stress disorder] PTSD from experiences in Africa and may have
an Adjustment Disorder related to his current situation.
However, these conditions would not typically be expected to
impact an individual's competence to proceed.
The fact that the defendant does not present with a requisite
mental disorder makes further analysis of his
competence-related abilities moot; however, this evaluator
would like to briefly comment on the issue of psycho-legal
abilities. Mr. Mbooyunkiza does report a fairly significant
lack of understanding of his charges, the legal process, and
the role of his attorney. It is this evaluator's opinion
that those deficits are a product of cultural and language
issues. It is also possible that the defendant is magnifying
his lack of knowledge due to fear regarding his charges and
the impending legal process. He is likely to need some
education on the legal system and will likely require the
continued use of an interpreter.
Taken together, it is this evaluator's opinion the
defendant is competent to proceed with his current charges.
experts' reports were introduced at a second hearing,
where the district court ruled: "The court has had an
opportunity to review all of the evaluations that have been
presented. The court finds based upon those evaluations and
the expert opinions that the defendant in this matter is
competent to stand trial."
appeal, Mbonyunkiza points to Dr. Thomas' initial report
as "the first professional indication . . . that it
was possible [he] was incompetent." But Mbonyunkiza
ignores the fact that Dr. Thomas subsequently updated the
initial report to reach an opinion Mbonyunkiza was competent
to stand trial stating, "Since the time of the October
2013 report, this evaluator was able to review additional
information and re-interview the defendant making possible
the formation of an opinion regarding competence."
Moreover, by the time of Dr. Thomas' updated evaluation,
Dr. Thomas had conducted two interviews with Mbonyunkiza and
reviewed Mbonyunkiza's medical and jail records.
further claims, "The exhibits demonstrated that there
was a language barrier, as well as serious concerns about
Mbonyunkiza's mental health." According to
Mbonyunkiza, "A general theme came through the written
materials, and the statements made by Mbonyunkiza on the
record-that he was suffering from voices, that he was
suffering from the effects of genocide, and he believed he
was under a voodoo spell from a witch."
addition to reviewing the experts' reports, the district
court had the opportunity to observe Mbonyunkiza at several
hearings before making a determination of his competence.
Although Mbonyunkiza did not testify, the court was able to
view Mbonyunkiza's demeanor, as well as his ability to
ask and answer questions and interact with counsel. Upon our
de novo review of the record, we conclude Mbonyunkiza failed
to prove by a preponderance of the evidence that he was not
competent to stand trial. Accordingly, we affirm the decision
of the district court on this issue.
III. Ineffective Assistance of Counsel
contends his trial counsel was ineffective in failing to
challenge his plea where (A) there was no factual basis to
support his conviction for dependent adult abuse; (B) the
plea was not intelligent, knowing, or voluntary due to his
lack of competence; and (C) there was no plea
agreement. To succeed on these
ineffective-assistance-of-counsel claims, Mbonyunkiza must
show (1) the breach of an essential duty and (2) prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
"If we conclude a claimant has failed to establish
either of these elements, we need not address the remaining
element." Dempsey v. State, 860 N.W.2d 860, 868
Factual Basis-Dependent Adult Abuse
guilty plea may not be accepted by a court without the court
first determining the plea has a factual basis. Iowa R. Crim.
P. 2.8(2)(b). If there is no factual basis to support a
defendant's guilty plea and the defendant's counsel
permits the defendant "to plead guilty and waive his
right to file a motion in arrest of judgment" anyway,
that counselor renders the defendant ineffective assistance.
See State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa
2010) (stating "counsel violates an essential duty"
and "[prejudice is presumed under these
circumstances"). To succeed on the essential-duty prong,
Mbonyunkiza must demonstrate the record lacks a factual basis
to support his guilty plea to dependent adult abuse. See
id. at 765.
pled guilty to dependent adult abuse causing physical injury,
in violation of Iowa Code sections 235B.2(5)(a)(1)(b) and
235B.20(4). "'Dependent adult abuse' means . . .
[a]ny of the following as a result of the willful or
negligent acts or omissions of a caretaker: . . . [t]he
commission of a sexual offense . . . with or against a
dependent adult." Iowa Code § 235B.2(5)(a)(1)(b).
"A caretaker who intentionally commits dependent adult
abuse on a dependent adult in violation of this chapter is
guilty of a class 'C' felony if the intentional
dependent adult abuse results in physical
injury." Id. § 235B.20(4) (emphasis
challenges the "physical injury" element of the
offense. Specifically, he claims D.B.'s pregnancy and
related sickness from the pregnancy was not a "physical
injury, " and the court "should not read pregnancy
into a definition of 'physical injury' without clear
language from the legislature that pregnancy is considered a
'physical injury.'" Mbonyunkiza relies on
United States v. Yankton, 986 F.2d 1225,
1229-30 (8th Cir. 1993), where the court concluded pregnancy
resulting from rape did not constitute a "serious bodily
injury." But as the State points out, the court in
Yankton was interpreting sentencing guidelines,
which allowed for an elevated offense level for
"permanent or life-threatening injury" or
"serious bodily injury, " not physical injury.
See Yankton, 986 F.2d at 1229. Indeed, Mbonyunkiza
pled guilty to dependent adult abuse resulting physical
injury-not resulting in serious injury.
Compare Iowa Code § 235B.20(2) (defining
dependent adult abuse resulting in serious injury), with
id. § 235B.20(4) (defining dependent adult abuse
resulting in physical injury); see also id.
§§ 235B.2(13) ("'Serious injury' means
the same as defined in section 702.18."); 702.18
(defining "serious injury"). The State counters,
"A better, common-sense view holds that pregnancy
resulting from rape meets not only the lower threshold of
'physical injury' but definitions of 'great
not reach the question of whether pregnancy should be
considered a physical injury per se. The parties acknowledge
"physical injury" is not defined in the Iowa Code.
According to Black's Law Dictionary,
"bodily injury"-also termed "physical
injury"-is defined as "physical damage to a
person's body." Black's Law Dictionary
789 (7th ed. 1999).
the record shows D.B. was a "wheel chair bound"
woman "unable to speak works or write" and
"suffer[ing] from physical incapacitation as well as a
mental defect or incapacity." While caring for D.B. as
part of his employment duties at the group home where D.B.
resided, Mbonyunkiza forcibly sexually assaulted D.B. The
Iowa Supreme Court has "recognize[d] that forcible
sexual abuse will frequently cause pain or other injury. It
has been held, for example, that forcible rape is bodily
injury as a matter of law." State v.
McKee, 312 N.W.2d 907, 914 (Iowa 1981) (citation
omitted). In addition to the act of sexual assault itself,
Mbonyunkiza's assault caused D.B. to become pregnant and
hospitalized for weight loss, gagging, and digestive
problems; D.B.'s pregnancy culminated in an abortion at
twenty-weeks' gestation. The record supports a finding of
a physical injury. Accordingly, we conclude the minutes
provide a factual basis for Mbonyunkiza's plea, and trial
counsel was not ineffective for permitting him to plead
Unknowing, Involuntary, Uninformed
next contends his counsel was ineffective in failing to
challenge his "clear incompetency" and allowing him
to plead guilty. Mbonyunkiza points to statements he made
during the hearings that showed "issues with [his]
ability to understand the guilty plea he was entering."
At the outset of the plea hearing, trial counsel stated:
I set these two cases for guilty pleas. That was done at the
request of my client. He informed me that he wishes to plead
guilty to these charges and have this matter set down for
sentencing. And at the time of sentencing, we intend to argue
for a favorable disposition for this defendant.
prior to the plea colloquy, Mbonyunkiza told the court,
"[W]hat I want is with complete awareness of the mental
illness that I have that is bothering me so much." He
stated, "[B]efore making a decision, in order to make a
decision, [I] ask for more time because I'm taking these
medications and I was for my mental health to be quite okay
so that it would be adequate for making this kind of
decision." Mbonyunkiza further stated he did not
understand "a lot of things" the court had talked
about. The court responded, "It appears to me you've
understood all of my questions, " and reminded
Mbonyunkiza, "Sir, you have undergone a competency
evaluation during the pendency of this case and you have been
found competent to stand trial."
counsel then explained her investigation of possible defenses
on Mbonyunkiza's behalf:
So what I did was discuss this case with this defendant as
well as an expert that I consulted with regarding the
defenses such as diminished responsibility, diminished
capacity, any mental health defenses.
I also obtained medical records regarding this defendant and
it provided some history. The information I obtained from my
various sources, in my opinion, would not be able to support
a diminished responsibility, diminished capacity or any such
mental health defenses that would have been-that this
defendant would have been suffering from at the time the
alleged offenses occurred.
court observed defense counsel was "capable and
competent" in her investigation of Mbonyunkiza's
mental health and possible defenses.
more discussion by Mbonyunkiza with regard to his mental
health, the court asked Mbonyunkiza if he wanted to enter a
plea or whether he wanted the matter set for trial.
Mbonyunkiza stated, "I would first like to discuss that
with my lawyer to make a decision." The court allowed
Mbonyunkiza twenty minutes in private with counsel. When the
hearing resumed, the court asked Mbonyunkiza, "Do you
wish to enter a plea of guilty today or do you want me to
confirm this for trial?" to which Mbonyunkiza answered,
"I understand. Yes. I want to take-I want to plead
de novo review, we cannot find counsel was ineffective in
failing to challenge Mbonyunkiza's plea as unknowing,
involuntary, or uninformed. We further observe trial counsel
was the one who raised the issue of competence initially, and
she requested a competency evaluation. As noted above, the
experts agreed Mbonyunkiza was competent to stand trial.
Moreover, in the plea context, the prejudice element requires
proof of a reasonable probability that, but for counsel's
errors, the defendant would not have pled guilty and would
have insisted on going to trial. State v.
Straw, 709 N.W.2d 128, 138 (Iowa 2006). On our de
novo review, we are convinced Mbonyunkiza cannot establish
either element of his claim. We affirm on this issue.
contends his counsel was ineffective in allowing him to plead
guilty without a plea agreement. Mbonyunkiza cites no
authority for this assertion, only a generalized claim that
he received "no benefit whatsoever" to pleading
guilty. It is apparent from the record Mbonyunkiza decided to
plead guilty and "argue for a favorable" sentence.
At the outset of the plea hearing, the State acknowledged,
"[I]t's my understanding that the defendant will
plead to all of these charges. There is not a plea agreement
so the parties will be free to argue any disposition."
decision to plead guilty could be considered both strategic
and logical. The evidence against him was overwhelming. By
"accept[ing] responsibility" for his actions,
Mbonyunkiza was able to express remorse to the court,
describe his "mental illness" as the reason he made
a "poor decision, " and ask the court to consider
his act "a single incident" for sentencing
purposes. Trial counsel was not ineffective in allowing
Mbonyunkiza to plead guilty under these circumstances. We
affirm on this issue.
Double Jeopardy and Merger
contends he "was accused of having sex one time with one
victim who was mentally incapable of giving consent, "
and "he was charged with sex abuse in the third degree,
neglect of a dependent person and dependent adult abuse, and
given consecutive sentences." According to Mbonyunkiza,
"This violated [his] rights under Iowa statutory law for
a violation of the merger rule in Iowa Rule of Criminal
Procedure 2.6(1), and the double jeopardy clause of the Fifth
Amendment to the United States Constitution."
review of a double-jeopardy claim is de novo, due to its
constitutional nature. State v. Lindell,
828 N.W.2d 1, 4 (Iowa 2013). To the extent Mbonyunkiza claims
his sentence was illegal because the court failed to merge
the three offenses (in accordance with Iowa Code section
701.9), our review is at law. See State v.
Perez, 563 N.W.2d 625, 627 (Iowa 1997); see
also Iowa Code § 701.9 ("No person shall be
convicted of a public offense which is necessarily included
in another public offense of which the person is convicted.
If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the
court shall enter judgment of guilty of the greater of the
offenses only."); Iowa R. Crim. P. 2.6(2) ("Upon
prosecution for a public offense, the defendant may be
convicted of either the public offense charged or an included
offense, but not both.").
Double Jeopardy Clause of the United States Constitution
states that no person shall "be subject for the same
offense to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. The clause "protects against
successive prosecutions after acquittal or conviction; and,
pertinent to this appeal, it protects against multiple
punishments for the same offense." Perez, 563
N.W.2d at 627. The prohibition is based on principles of
finality and the prevention of prosecutorial overreaching.
State v. Butler, 505 N.W.2d 806, 807 (Iowa
multiple punishments are imposed pursuant to a single
prosecution, however, application of the Double Jeopardy
Clause is limited. The reason is that the multiple-punishment
proscription "does no more than prevent the sentencing
court from prescribing greater punishment than the
legislature intended." Missouri v.
Hunter, 459 U.S. 359, 366 (1983). Accordingly,
"the question of what punishments are constitutionally
permissible is no different from the question of what
punishments the legislature intended to be imposed."
State v. McKettrick, 480 N.W.2d 52, 57
question before us is whether Mbonyunkiza, found to have
committed the single act of sexual assault on D.B., can be
sentenced for convictions of sexual abuse in the third
degree,  neglect of a dependent person,
and dependent adult abuse. In the absence of clear
legislative intent to intend cumulative punishment, we turn
to the rule of statutory construction articulated in
Blockburger v. United States, 284 U.S. 299,
304 (1932). Namely, "'where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision
requires proof of an additional fact which the other does
not.'" Butler, 505 N.W.2d at 807 (quoting
Blockburger, 284 U.S. at 304). "If one crime is
a lesser included offense of the other crime, the offenses
are the 'same' and cumulative punishments cannot be
imposed." State v. Taylor, 596 N.W.2d
55, 57 (Iowa 1999).
But if one offense is not included within the other, there is
a presumption that multiple punishments can be assessed. The
lesser included offense is necessarily included in the
greater offense if it is impossible to commit the greater
offense without also committing the lesser offense. If the
lesser offense includes an element that is not required for
the greater offense, the lesser is not included in the
Id. (citations omitted); see also State v.
Miller, 841 N.W.2d 583, 587-88 (Iowa 2014)
("The test we have settled on to determine whether a
crime is a lesser included offense of a greater crime
generally inquires 'whether the greater offense cannot be
committed without also committing all elements of the lesser
offense.'" (citation omitted)).
contends sexual abuse in the third degree is a
lesser-included offense of neglect of a dependent person and
dependent adult abuse. Because it is possible to commit
neglect of a dependent person without committing sexual abuse
in the third degree and to commit dependent adult abuse
without committing sexual abuse in the third degree,
Mbonyunkiza's challenge fails. For instance, it is
possible to commit neglect of a dependent person without
committing the other two offenses if the perpetrator is the
victim's husband and the victim is under eighteen years
of age or does not suffer an injury. It is possible to commit
dependent adult abuse but not the other two offenses if the
perpetrator is married to the adult victim but while she has
the capacity to consent to sex she cannot perform certain
physical or financial tasks for herself. Because it is
possible to commit one offense without committing the other,
Mbonyunkiza's challenge fails.
also challenges the district court's imposition of
"the maximum possible sentence of 30 years in
prison." Specifically, Mbonyunkiza claims because three
of the four counts were "all for one act, " the
court should have imposed concurrent sentences for those
counts rather than consecutive sentences. Our review is for
an abuse of discretion. State v. Thompson,
856 N.W.2d 915, 918 (Iowa 2014).
already concluded in our analysis of Mbonyunkiza's double
jeopardy and merger claims that there were separate offenses.
Imposing consecutive sentences on multiple convictions
arising from the same transaction is within the prerogative
of the sentencing court. See State v.
Criswell, 242 N.W.2d 259, 261 (Iowa 1976)
("Iowa statutes allow imposition of consecutive
sentences for convictions obtained under the circumstances
presented [separate offenses committed in the course of a
single transaction]."); see also Taylor, 596
N.W.2d at 57 ("The decision to impose consecutive
sentences was discretionary."). Here, in sentencing
Mbonyunkiza, the district court stated:
I appreciate your acceptance of responsibility by your pleas
of guilty and by the statements you've made. But with
responsibility comes accountability, and we are accountable
for our actions. The problems afflicting you are serious. I
understand that from what you've said and the presentence
investigation report, but I believe the problems that you
suffer from and afflictions that you may have can best be
treated in an atmosphere that allows for the maximum
protection of the public from further criminal activity by
The offenses of sex abuse in the third degree, neglect of a
dependent person, dependent adult abuse all are horrible
offenses. They not only show a massive deviation from proper
and decent human behavior, but an utter disregard for a
person you are charged with caring for.
This design and devious abuse of a person totally unable to
care for herself and a person especially defenseless against
the sexual assault perpetrated upon her is particularly
In addition, your voluntary absence and flight from this
jurisdiction illustrates your contempt for the law. Your
actions taken together with all of the factors the Court must
consider by law lends itself to the conclusion that society
deserves and expects protection from you for as long as
possible to allow necessary steps, if you are willing, for
your treatment for whatever you are suffering from or what
afflictions you have.
You, as much as anyone, have observed and endured firsthand
terrible cruelty that can come from the hands of humans.
You, more than anyone, should appreciate the pain and
suffering not only the victims of such cruelty or such abuse
and heinous crimes, but also what happens to those who are
the loved ones who are left to weep and suffer and mourn.
You came to the United States to seek asylum and enjoy the
freedoms and protection of our laws, our people and the
government of the people. And even though this was all
provided to you, the acts you have committed have caused that
freedom now to be limited, soon to be taken away.
again requested the court order his sentences to run
concurrent, to which the court responded:
The Court has considered the request made by the defendant
and defendant's counsel. The request is hereby denied.
For the reasons as previously stated, the Court finds, again,
these crimes are so horrible and heinous as to require
protection of the public, and the Court intends to do just
. . . .
The Court, again, has considered all the circumstances and
all the factors involved. Particularly aggravating is the
fact that this offense was committed upon a person who was
totally defenseless, totally unable to give consent, let
alone to fend off the actions of the defendant, and that this
defendant, as you stated, came to the United States to seek
asylum, to seek a new life for himself, to seek freedom, to
be protected from the genocide he escaped from and yet
decided, for whatever reason, to commit this heinous offense-
I can't think of another case or set of circumstances
that could require the sentence imposed as I have done so
discern no abuse of discretion in the district court's
statement of reasons and imposition of consecutive sentences.
We affirm Mbonyunkiza's convictions and sentences for
sexual abuse in the third degree, neglect of a dependent
person, dependent adult abuse, and failure to appear.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2015).
 Generally, a defendant's failure
to file a motion in arrest of judgment bars a direct appeal
of the conviction. Iowa R. Crim. P. 2.24(3)(a). But this
failure does not bar a challenge to a guilty plea if the
failure to file a motion in arrest of judgment resulted from
ineffective assistance of counsel. State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We
therefore proceed to the merits of Mbonyunkiza's
 The State challenges Mbonyunkiza's
error preservation, noting, "Parties cannot
'predicate error upon the court's doing the very
thing they requested the court to do.'" State
v. Means, No. 14-1376, 2015 WL 6509741, at *9
(Iowa Ct. App. Oct. 28, 2015) (citation omitted). But here,
at sentencing, trial counsel requested the court "to run
the counts in . . . the sex abuse case . . . concurrent"
due to the "single nature of this incident." Trial
counsel acknowledged "it makes sense" to run the
sentence for failure to appear consecutive because
"that's a separate charge, separate incident."
We therefore disagree with the State's contention
Mbonyunkiza is now challenging the court's action in
doing what he requested the court do.
 Relevant to Mbonyunkiza's plea on
this charge, Iowa Code section 709.1 provides:
Any sex act between persons is sexual abuse by either
of the persons when the act is performed with the other
person in any of the following circumstances: . . . .
2. Such other person is suffering from a mental defect
or incapacity which precludes giving consent, or lacks the
mental capacity to know the right and wrong of conduct in
sexual matters. With regard to the factual basis for the
degree of the charge to which Mbonyunkiza pled, "[a]
person commits sexual abuse in the third degree when the
person performs a sex act [and t]he act is between persons
who are not at the time cohabiting as husband and wife and
[t]he other person is suffering from a mental defect or
incapacity which precludes giving consent." Iowa Code
 The crime of neglect of a dependent
person is defined as follows:
A person . . . having custody of a . . . person who by
reason of mental or physical disability is not able to care
for the person's self, who knowingly or recklessly
exposes such person to a hazard or danger against which such
person cannot reasonably be expected to protect such
person's self . . ., knowing or having reason to believe
that the person will be exposed to such hazard or danger,
commits a class "C" felony. Iowa Code §
 The crime of dependent adult abuse is
defined as: "Any of the following as a result of the
willful or negligent acts or omissions of a caretaker: . . .
. The commission of a sexual offense under chapter 709 or
section 726.2 with or against a dependent adult." Iowa
Code § 235B.2(5)(a)(1)(b). "Caretaker" is
defined as "a related or nonrelated person who has the
responsibility for the protection, care, or custody of a
dependent adult as a result of assuming the responsibility
voluntarily, by contract, through employment, or by order of
the court." Id. § 235B.2(1).
"Dependent adult" is defined as "a person
eighteen years of age or older who is unable to protect the
person's own interests or unable to adequately perform or
obtain services necessary to meet essential human needs, as a
result of a physical or mental condition which requires
assistance from another, or as defined by departmental
rule." Id. § 235B.2(4). Section 235B.20(4)
further provides: "A caretaker who intentionally commits
dependent adult abuse on a dependent adult in violation of
this chapter is guilty of a class 'C' felony if the
intentional dependent adult abuse results in physical