DEMARKUS W. RUCKMAN, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Polk County, Jeffrey D.
Ruckman appeals the district court's denial of his
application for postconviction relief.
T. Hoover of Hoover Law Firm, P.L.L.C., Winterset, for
J. Miller, Attorney General, and Kevin Cmelik, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
State charged DeMarkus Ruckman with second-degree sexual
abuse based on acts he committed on a fifteen-year-old girl.
Ruckman pled guilty to third-degree kidnapping and assault
with intent to commit sexual abuse.
filed an application for postconviction relief, claiming in
part that his plea attorney "coerced and misled"
him into pleading guilty. The district court denied the
application following an evidentiary hearing.
appeal, Ruckman argues "he was coerced into taking the
plea deal." He contends "the State could not have
proved that he committed the act of Sex Abuse 2nd degree as
he didn't penetrate [the girl] or have sex with her,
" but "[d]espite the above facts Trial Counsel
advised [him] that she did not think she could win at
trial." In his view, "[h]ad [counsel] been more
confident and enthusiastic about the case he would have
[gone] to trial because he had a good case to go to
guilty plea "waives all defenses not intrinsic to the
plea." State v. Carroll, 767 N.W.2d
638, 641 (Iowa 2009). A defendant can "challenge the
validity of his guilty plea by proving the advice he received
from counsel in connection with the plea was not within the
range of competence demanded of attorneys in criminal
cases." Id. at 642. This is the crux of
Ruckman's argument. To prevail, he must show (1) counsel
breached an essential duty and (2) prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687
(1984). If we conclude Ruckman "has failed to establish
either of these elements, we need not address the remaining
element." State v. Thorndike, 860
N.W.2d 316, 320 (Iowa 2015). We elect to focus on the breach
attorney testified by deposition about the viability of the
State's charge of second-degree sex abuse. She
acknowledged Ruckman's belief that "he had to have a
full sexual intercourse with somebody for it to be sex
abuse" but stated "that's not the way the law
is written and it's not the way the law is
interpreted." She testified, "Sexual contact is
defined differently in the law than what . . . Mr. Ruckman
believed." She discussed the difference with Ruckman.
Based on her investigation of the facts, which included a
deposition of the girl Ruckman was charged with abusing, she
concluded Ruckman would "likely . . . be convicted of a
sex offense" if he proceeded "to trial in front of
a jury" and "he was better off taking the plea
agreement as it was."
attorney admirably assessed the law and the facts on
Ruckman's behalf. She correctly disabused Ruckman of the
notion that he could not be found guilty of sexual abuse
without penetration of his penis into the girl's vagina.
In pertinent part, sexual abuse is defined as "[a]ny sex
act between persons . . . when the act is performed with the
other person . . . by force or against the will of the other.
Iowa Code § 709.1 (2015). "Sex act, " in turn,
means several things, including "[p]enetration of the
penis into the vagina" but also including
"[c]ontact between the mouth and genitalia."
Id. § 702.17(1), (2). During her deposition,
the abused girl stated Ruckman was "[n]ot really"
able to put his penis inside her vagina, but he did have her
"suck his penis." As his attorney concluded, this
testimony suggested the State would be able to prove the
commission of a sex act by Ruckman if he went to trial on the
second-degree sexual abuse charge.
attorney acted competently in apprising Ruckman of "what
we believe the facts will be at trial" and "the
risks and the benefits" of pleading guilty. On our de
novo review, we find scant if any evidence that she coerced
Ruckman into entering a guilty plea to third-degree
kidnapping and assault with intent to commit sexual abuse in
lieu of going to trial on a charge of second-degree sexual
abuse. To the contrary, she gave Ruckman all the information
he needed to make an informed decision about whether to go to
trial or accept the plea offer. ...