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State v. Coleman

Supreme Court of Iowa

February 2, 2018

STATE OF IOWA, Appellee,
v.
JAMES MICHAEL COLEMAN, Appellant.

         Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

         The defendant challenges his conviction for failure to comply with the sex offender registry.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, for appellee.

          ZAGER, Justice.

         A defendant convicted of failure to comply with the sex offender registry under Iowa Code sections 692A.104 and 692A.105 (2015) appeals his conviction. The defendant argues the district court incorrectly interpreted Iowa Code section 692A.105. The district court read the statute's five-business-day period for notification to require an offender to make this notification within five business days of changing to temporary lodgings. The defendant claims the statute requires the offender to make notification within five business days of being away from the offender's registered principal place of residence for more than five days. The defendant claims the district court therefore incorrectly instructed the jury on the applicable law. He also maintains that he was denied a fair trial due to prosecutorial misconduct and was denied effective assistance of counsel. Finally, he alleges the district court erred in assessing appellate attorney fees against him without determining his reasonable ability to pay them. For the reasons set forth below, we affirm the conviction. However, we vacate the sentence and remand to the district court for resentencing consistent with this opinion.

         I. Background Facts and Proceedings.

         In August 2015, James Coleman was a registered sex offender in Black Hawk County. Coleman listed his principal place of residence as his parents' home in Waterloo where he lived with his parents and an adult sister. As a registered sex offender, Coleman was required to provide information and notify the sheriff within five business days of certain triggering events defined in the statute. Coleman was also subject to electronic GPS monitoring with an ankle bracelet[1] and had curfew obligations as conditions of his probation. On August 15, the battery of Coleman's ankle bracelet was running low, and his probation officer, Todd Harrington, contacted Coleman and spoke with him to resolve the issue. Harrington could not recall whether he called Coleman at the landline belonging to Coleman's parents or another phone number. Harrington was reassigned soon after, and Mark Blatz replaced him as Coleman's probation officer.

         On August 25, Blatz tried and failed to make contact with Coleman through the landline telephone. Blatz left Coleman a telephone message. Blatz tried calling Coleman again the next day and was still unable to reach him. After failing to reach Coleman over the phone, Blatz went to Coleman's registered place of residence on August 26 and spoke with Coleman's father, Michael Coleman (Michael). Michael told Blatz that Coleman was not present. Blatz then contacted law enforcement for help tracking Coleman down.

         On August 27, Sergeant Steve Peterson and DCI Agent Jack Liao went to Coleman's residence and spoke with Michael. Michael told the officers that he had been out-of-state with his wife for about a week, and he had not seen Coleman since he returned on August 16 or 17. At trial, Michael clarified during his testimony that it was August 17. Michael told the officers that it was "very abnormal for [Coleman] to be gone for so long without having any communication with his [father]." There were voicemails left on the answering machine in Michael's house for Coleman, and Michael allowed officers to listen to them. One of the messages was for Coleman from a woman who indicated she was waiting for Coleman at Motel 6.

         The officers then went to Motel 6 in Waterloo looking for Coleman or the woman who had left the message. The officers divided their search for Coleman with Peterson speaking with motel management to identify the woman from the message, while Liao talked with other people in the motel. Liao spoke with a motel employee who indicated that Coleman had stopped by Motel 6 on the previous day-August 26-and ended up staying in the motel employee's room at the motel. The officers found Coleman in the employee's motel room, along with the charger for his GPS monitor that had been missing from his house. When the officers asked Coleman about where he had been, Coleman told them he had just returned from the Cedar Rapids area. Between August 17 and August 27, Coleman never met with the sex offender registrar of the Black Hawk County sheriff's office to provide any notification regarding his location. The officers arrested Coleman for probation violation and added an additional charge for a sex offender registry violation later that day.

         On August 28, Coleman asked to speak with Peterson and Liao while he was in jail. Coleman told the officers that his disappearance was not voluntary and that people who were trying to collect a debt they believed Coleman owed them had taken him against his will to locations in Cedar Rapids, Hiawatha, and Marion. The conversation between the officers and Coleman never specified when Coleman was gone or if the disappearance was for a continuous period. The officers were unable to corroborate any part of Coleman's story.

         On October 5, the State charged Coleman with a violation of Iowa Code sections 692A.104 and 692A.105 for his failure to comply with the sex offender registry. The State alleged that the registration violation was a second offense that resulted in enhancement to a class "D" felony under Iowa Code section 692A.111, and it later amended the charge to add a habitual offender enhancement under Iowa Code sections 902.8 and 902.9. The underlying registry violation was severed for trial purposes from the enhancement proceedings.

         On March 10, 2016, a jury convicted Coleman of failure to comply with the sex offender registry requirements under Iowa Code sections 692A.104 and 692A.105. On March 21, Coleman stipulated to the second offense and habitual offender enhancements pursuant to a plea agreement. Coleman's sentence in the pending case was to run concurrent with the sentence imposed in a separately pending probation violation matter. The district court accepted Coleman's stipulation, and it later imposed judgment against Coleman for second offense failure to comply with the sex offender registry, a class "D" felony, committed as a habitual offender, in violation of Iowa Code sections 692A.104, 692A.105, 692A.111, 902.8, and 902.9. The district court imposed an indeterminate term of incarceration not to exceed fifteen years with a mandatory minimum of three years in prison. The district court suspended this sentence and placed Coleman on probation with the special condition that he reside at a residential treatment facility for one year or until he achieved the maximum benefits of treatment. Though the district court ordered Coleman to pay court costs, it found he was not reasonably able to reimburse the State for court-appointed attorney fees. Later, the district court revoked Coleman's suspended sentence and imposed the original sentence. The district court also found Coleman was not reasonably able to pay the court-appointed attorney fees and expenses connected to his probation revocation matter. Coleman timely filed a notice of appeal, and we retained the appeal.

         II. Standard of Review.

         "We review sufficiency-of-the-evidence challenges for corrections of errors at law." State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). Our standard of review for rulings on questions of statutory interpretation is also for correction of errors at law. State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017). We likewise review challenges to jury instructions for correction of errors at law. State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010). "We do not consider an erroneous jury instruction in isolation, but look at the jury instructions as a whole." State v. Murray, 796 N.W.2d 907, 908 (Iowa 2011).

         We review claims of ineffective assistance of counsel de novo. Schlitter, 881 N.W.2d at 388. Our standard of review for constitutional issues is also de novo. State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009). We review a district court's decision on claims of prosecutorial misconduct for abuse of discretion, which occurs when "a court acts on grounds clearly untenable or to an extent clearly unreasonable." State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) (quoting State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006)). Further, "[o]ur review of a restitution order is for correction of errors at law." State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004).

         III. Analysis.

         Coleman presents a number of challenges on direct appeal. First, Coleman claims the evidence was insufficient to establish that he failed to notify the sheriff "within five business days" under Iowa Code section 692A.105. More specifically, Coleman disputes the interpretation of Iowa Code section 692A.105 that the State presented to the jury requiring an offender to notify the sheriff within five business days of changing to temporary lodgings. Coleman proposes that the statute should be read to require notification within five business days after the sex offender has already been away from his or her principal residence for more than five days. Second, Coleman argues the marshaling instructions presented to the jury did not convey the applicable law. Third, he maintains he was denied a fair trial due to prosecutorial misconduct. Fourth, Coleman presents a variety of ineffective-assistance-of-counsel claims based on his trial counsel's decision not to object to certain prosecutorial statements, as well as counsel's decisions not to challenge certain jury instructions, the vagueness of the statute, and certain aspects of Coleman's stipulations to the sentencing enhancements. Finally, Coleman alleges that the sentencing court erred when its sentencing order stated Coleman would be assessed the cost of the court-appointed appellate attorney fees unless he filed a request for a hearing on his reasonable ability to pay court-appointed appellate attorney fees within thirty days of the issuance of procedendo following the appeal. We will consider each issue in turn.

         A. Interpretation of Iowa Code Section 692A.105.

Iowa Code section 692A.105 states,
In addition to the registration provisions specified in section 692A.104, a sex offender, within five business days of a change, shall also appear in person to notify the sheriff of the county of principal residence, of any location in which the offender is staying when away from the principal residence of the offender for more than five days, by identifying the location and the period of time the offender is staying in such location.

Iowa Code § 692A.105. At trial, Coleman and the State presented competing theories to the jury regarding the time within which an offender must make a notification of his absence from his principal place of residence for more than five days under Iowa Code section 692A.105. The State claimed the triggering event for the notification requirement occurs when the offender changes to temporary lodgings. On the other hand, Coleman argued the triggering event for the notification requirement occurs only after the offender has been away from the principal residence for more than five days. Thus, Coleman reasoned, the offender has five business days within which to notify the sheriff beginning on the sixth day of the offender's absence. Under Coleman's statutory interpretation, the evidence presented at trial would be insufficient to establish Coleman committed the registry violation at issue. Therefore, in order for us to determine whether the State provided sufficient evidence to sustain the jury verdict against Coleman, we must interpret Iowa Code section 692A.105 to resolve the conflicting theories of its meaning. State v. Showens, 845 N.W.2d 436, 441 (Iowa 2014).

         The first step in our statutory interpretation analysis is to determine whether the statute is ambiguous. Iowa Dist. Ct., 889 N.W.2d at 471. We need not look any further than the plain language of the statute when the language is unambiguous. Id. However, "if reasonable minds could differ or be uncertain as to the meaning of the statute" based on the context of the statute, the statute is ambiguous and requires us to rely on principles of statutory construction to resolve the ambiguity. Id. at 471-72 (quoting Iowa Ins. Inst. v. Core Grp. of Iowa Ass'n for Justice, 867 N.W.2d 58, 72 (Iowa 2015)). The dispositive language in the statute is the meaning of "within five business days of a change." The legislature defines "change" within the context of the statute governing the sex offender registry requirements as "to add, begin, or terminate." Iowa Code § 692A.101(5). "When the legislature has defined words in a statute-that is, when the legislature has opted to 'act as its own lexicographer'-those definitions bind us." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014) (quoting State v. Fischer, 785 N.W.2d 697, 702 (Iowa 2010)).

         Based on the legislature's definition of "change, " one possible interpretation of the statute-and the position the State presented-is that "change" is synonymous with "began." Under this interpretation, Coleman was required to notify the sheriff within five business days of when he began to stay at a location away from his principal residence. However, this is not the only reasonable interpretation. As Coleman noted, "change" could also be synonymous with "add" or "terminate." In that case, the statute would require that within five business days of the beginning, addition, or termination of a triggering event-namely, the offender's absence from the principal residence-the offender would be required to notify the sheriff of any location in which he or she is staying when he or she has been away from the principal residence for more than five days.

         Since both interpretations are reasonable, the statute is ambiguous. Consequently, we must rely on our tools for construing ambiguous statutes to determine what Iowa Code section 692A.105 means by "within five business days of a change." See Iowa Dist. Ct., 889 N.W.2d at 472. "When we interpret a criminal statute, our goal 'is to ascertain legislative intent in order, if possible, to give it effect.' " State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008) (quoting State v. Conley, 222 N.W.2d 501, 502 (Iowa 1974)). Additionally, although we adhere to the rule of lenity in criminal cases, criminal statutes still "must be construed reasonably and in such a way as to not defeat their plain purpose." State v. Hagen, 840 N.W.2d 140, 146 (Iowa 2013) (quoting State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995)).

         "[T]he purpose of the registry is protection of the health and safety of individuals, and particularly children, from individuals who, by virtue of probation, parole, or other release, have been given access to members of the public." State v. Iowa Dist. Ct., 843 N.W.2d 76, 81 (Iowa 2014). Iowa Code chapter 692A provides a variety of mechanisms to ensure this protection. For example, section 692A.124 provides for electronic tracking and monitoring if necessary based upon a risk assessment of the offender's background and other safety factors. See Iowa Code § 692A.124(1)-(2). Iowa Code section 692A.121(13) entitles Iowans who subscribe to a notification system to receive changes to any sex offender registration in a geographic area of their choice. See id. § 692A.121(13). Similarly, Iowa Code section 692A.118(11) mandates the state to "make a reasonable effort to ascertain the whereabouts of the offender" when there is reason to believe the offender has fled from the principal residence or changed residence to an unknown location. See id. § 692A.118(11). Likewise, chapter 692A allows Coleman's original victim and other members of the public to contact the county sheriff's office and request relevant information from the registry about Coleman, which encompasses his "[t]emporary lodging information, including the dates when residing at the temporary lodging." Id. § 692A.121(5)(b)(3).

         We agree with the State that these sections demonstrate the legislature's intent to provide consistent monitoring of registered sex offenders. It would be inconsistent with the purpose of the statute and the legislative intent if we were to interpret section 692A.105 so that Coleman would only have to make notification of temporary lodging after being absent from the principal residence for more than five days. This would clearly hinder law enforcement's ability to monitor registered sex offenders in order to protect society from them. As we have previously held, statutes "must be construed reasonably and in such a way as to not defeat their plain purpose." Peck, 539 N.W.2d at 173. In this case, the State's interpretation of Iowa Code section 692A.105, that requires a registered sex offender to make notification of his absence when he changes his location from his principal residence, reasonably construes the statute in a way that is consistent with the legislature's purpose and intent. To hold otherwise would be to defeat the statute's plain purpose, which we cannot do. See id.

         Further, "[w]e read statutes as a whole rather than looking at words and phrases in isolation." Iowa Ins. Inst., 867 N.W.2d at 72. A review of Iowa Code chapter 692A as a whole reveals that it is replete with sections that require an offender to report relevant information to the local sheriff's office "within five business days" of a notification-triggering event, thereby giving Coleman fair warning of the meaning of "within five business days" under Iowa Code section 692A.105. For example, an offender must register "within five business days of being required to register." Iowa Code § 692A.104(1). An offender also must appear in person to notify the local sheriff's office "within five business days of changing a residence." Id. § 692A.104(2). Under Iowa Code section 692A.104(3), an offender must notify the local sheriff's office through a notification method of the office's choosing "within five business days of a change in relevant information." Id. § 692A.104(3). The legislature has defined "relevant information" to incorporate "[t]emporary lodging information, including dates when residing in temporary lodging." Id. § 692A.101(23)(a)(18).

         Thus, if we look at chapter 692A in context to interpret section 692A.105 in pari materia, or "by reference to other similar statutes or other statutes related to the same subject matter, " State v. Nail, 743 N.W.2d 535, 540 (Iowa 2007), the meaning of "within five days" in section 692A.105 is fairly ascertainable and aligns with the State's interpretation. While section 692A.105 is poorly written, the meaning of "within five business days" can be fully understood by referencing the other sections of Iowa Code chapter 692A which consistently use the same "within five business days" language as in section 692A.105. No other required change in the sex offender's "relevant information" under chapter 692A provides the offender with a grace period before triggering the notification requirement. As a registered sex offender, Coleman was required to abide by these other provisions of Iowa Code chapter 692A that consistently used the same "within five business days" language to mean within five business days of a notification-triggering event. The statutory provision provided him with fair notice of his obligation under Iowa Code section 692A.105 to provide notification of his change to temporary lodgings within five business days of that change. If we were to interpret the meaning of "within five business days" differently in section 692A.105 to incorporate the grace period that Coleman proposes, we would be creating an asymmetrical law that is inconsistent with the way the statute uses that terminology throughout the registration and notification provisions in chapter 692A. See id. at 541 ("Through [the in pari materia] interpretation, we necessarily operate on the objective assumption that the legislature strives to create a symmetrical and harmonious system of laws.").

         Despite the legislature's ambiguous language in Iowa Code section 692A.105, we are convinced that based on the purpose of Iowa's sex offender registry, the legislative intent of chapter 692A governing that registry, and the context of section 692A.105 by reference to the other provisions in chapter 692A, the legislature intended for registered sex offenders to provide notification of a change to temporary lodgings within five business days of that change. Under this interpretation, "we give the statute a reasonable, contextual interpretation that is workable, promotes symmetry, and which therefore best manifests legislative intent" in accord with our goal to give effect to the legislative intent when we interpret criminal statutes. Id. at 543; see also Finders, 743 N.W.2d at 549. Coleman argues the State's evidence is insufficient even under this interpretation because the State did not present evidence that he left his principal residence with an intent to be away for more than five days. However, section 692A.105 does not require the State to show the offender's specific intent to be away from his principal residence for more than five days. Accordingly, the State was not required to present evidence that Coleman left with an intention to be away from his principal residence for more than five days. The evidence is sufficient to show Coleman failed to comply with section 692A.105. Therefore, we affirm Coleman's conviction for failure to comply with the sex offender registry under Iowa Code sections 692A.104 and 692A.105.

         B. Challenge to the Marshaling Instruction.

         Coleman argues the district court failed to properly instruct the jury regarding the applicable law. The marshaling instruction at issue laid out the two elements of failure to comply with the sex offender registry. Coleman objected to the instruction's phrasing of the second element on the ground that it merely recited the statutory language of Iowa Code section 692A.105, which Coleman asserted did not adequately instruct the jury on the proper way to determine when the five-business-day period should commence. The challenged portion of the marshaling instruction required the State to prove that

[o]n or about August 15, 2015, through August 27, 2015, the defendant failed to appear in person and notify the Black Hawk County sheriff within five business days of any location in which the offender is staying when away from the principal place of residence of the offender for more than five days, and identifying the location and the period of time the offender is staying in such location.

         "Jury instructions 'must convey the applicable law in such a way that the jury has a clear understanding of the issues it must decide.' " Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 892 (Iowa 2015) (quoting Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997)). Errors in jury instructions merit reversal when prejudice results. Id. "Prejudice occurs and reversal is required if jury instructions have misled the jury[ ] or if the district court materially misstates the law." Id. Given our interpretation of Iowa Code section 692A.105, that an offender must notify the sheriff of a change in location within five business days of changing to temporary lodgings, the jury instructions adequately conveyed the applicable law to give jurors a clear understanding of the issues it needed to decide. Therefore, we affirm the district court's use of these jury instructions.

         C. Prosecutorial Misconduct.

         Coleman claims his due process right to a fair trial was violated because of prosecutorial misconduct based on a number of the prosecutor's statements at trial. However, only two of these challenges to alleged improper prosecutorial statements were objected to at trial and, the parties agree, were preserved on appeal. Consequently, his claims regarding other prosecutorial statements can only be examined under our analysis for ineffective assistance of counsel. We first examine the statements in which Coleman preserved error.

         During closing argument, the prosecutor told the jury, "I understand the defense, they want to-to blow a lot of smoke around the law, make it as fuzzy as possible" and "the defense will hide behind [a] cloud of assumption." Coleman's counsel objected to these statements at the time they were made, and the district court then told the prosecutor to keep his arguments to the statutes at issue.

         In order to establish a due process claim based on prosecutorial misconduct, Coleman must demonstrate both that prosecutorial misconduct occurred and that the prosecutorial misconduct resulted in prejudice that denied the defendant a fair trial. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). In our legal system,

"[p]rosecutorial misconduct" . . . describes conduct by the government that violates a defendant's rights whether or not that conduct was or should have been known by the prosecutor to be improper and whether or not the prosecutor intended to violate the Constitution or any other legal or ethical requirement.

ABA House of Delegates, Recommendation 100B, at 1 (2010), http://www.americanbar.org/content/dam/aba/directories/policy/2010 _am_100b.pdf. In the past, we have found prosecutorial misconduct includes, but is not limited to,

questioning witnesses about others' deceit, distorting testimony, making unsupported statements during closing argument, stating the defendant lied during testimony, diverting the jury from deciding the case based on the evidence, [and] making other inflammatory or prejudicial statements about the defendant.

Schlitter, 881 N.W.2d at 393; see also State v. Musser, 721 N.W.2d 734, 754-55 (Iowa 2006); State v. Carey, 709 N.W.2d 547, 552 (Iowa 2006); Graves, 668 N.W.2d at 870-71.

         We have also previously warned against conflating prosecutorial misconduct with prosecutorial error. See Schlitter, 881 N.W.2d at 393- 94. While prosecutorial misconduct involves either the prosecutor's reckless disregard of a duty to comply with the applicable legal standard or obligation, or a prosecutor's intentional statements in violation of an obvious obligation, standard, or applicable rule, prosecutorial error is based on human error or the exercise of poor judgment. Id. Specifically, the prosecutor "owes a duty to the defendant as well as to the public. The prosecutor's duty to the accused is to 'assure the defendant a fair trial' by complying with 'the requirements of due process throughout the trial.' " Graves, 668 N.W.2d at 870 (citations omitted) (quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002)). Since Coleman claims prosecutorial misconduct instead of prosecutorial error, he must show the prosecutor acted with reckless disregard of this duty or intentionally made statements in violation of an obvious obligation, legal standard, or applicable rule that went beyond an exercise of poor judgment. See Schlitter, 881 N.W.2d at 393-94. Nevertheless, Coleman need not show the prosecutor acted in bad faith. Graves, 668 N.W.2d at 869.

         We reject Coleman's claims of prosecutorial misconduct with regard to the prosecutor's isolated comments of "the defense, they want to-to blow a lot of smoke around the law, make it as fuzzy as possible" and "the defense will hide behind [a] cloud of assumption." Coleman reasons these statements were inflammatory characterizations that maligned and denigrated the defense, which are considered prosecutorial misconduct under our holding in Graves. Specifically, Coleman cites Graves for the proposition that a "prosecutor should not denigrate a defense as a sham or smoke screen." However, this mischaracterizes our holding in Graves.

         In Graves, we reversed the defendant's conviction and remanded the case for a retrial based on prosecutorial misconduct where the prosecutor attacked the credibility and character of the defendant by making multiple statements about the defendant being a liar. See id. at 879-80 ("In rebuttal, the prosecutor mounted a full attack on the credibility and character of the defendant. He referred to 'the problem of Mr. Graves coming into Court and lying like he did.' He made five additional references to the defendant's lying and one statement that Graves 'was not telling the truth.' . . . Thus, the objectionable comments by the prosecutor were not isolated, but rather reflected a pattern of misconduct."). Instead of holding that it was prosecutorial misconduct for the prosecutor to refer to defense counsel's ...


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