from the Iowa District Court for Buchanan County, Linda M.
criminal defendant appeals his conviction for indecent
exposure, contending his trial counsel was ineffective for
failing to challenge the sufficiency of the evidence, and his
sentence for stalking, contending imposition of the Iowa Code
section 911.2B surcharge violates the constitutional
prohibition against ex post facto laws. DISTRICT COURT
JUDGMENT REVERSED IN PART, SENTENCE VACATED IN PART, AND CASE
REMANDED WITH INSTRUCTIONS.
C. Smith, Appellate Defender, for appellant.
J. Miller, Attorney General, Timothy M. Hau, Assistant
Attorney General, Shawn Harden, County Attorney, and Jenalee
Zaputil, Assistant County Attorney, for appellee.
defendant was convicted of indecent exposure and stalking. On
appeal he contends the indecent-exposure conviction should be
reversed because his defense counsel was ineffective in
failing to challenge the sufficiency of the evidence and in
failing to object to the marshaling instruction for that
charge. The defendant also contends his sentence for the
stalking conviction was illegal because it included a
surcharge that was not authorized by law. Upon review, we
conclude the indecent-exposure conviction must be reversed
because defense counsel provided ineffective assistance. We
further conclude the surcharge imposed as part of the
sentence for stalking must be vacated because it was not
authorized by law under the circumstances of this case.
Background Facts and Proceedings.
Lopez met J.S. in the fall of 2014 at her place of
employment. After their initial encounter, Lopez began
calling J.S. at work to talk with her and express his
interest in dating. J.S. asked Lopez not to contact her at
work, but he persisted. Seeking to avoid Lopez's calls at
her workplace, J.S. gave him her personal cellphone number.
they met several times at restaurants for food and drinks,
Lopez attempted to arrange meetings with J.S. in hotel rooms.
When J.S. rebuffed his attempts to engage in intimate
contact, Lopez became even more persistent. He entered
J.S.'s home without her permission and left notes and
theater tickets. Despite J.S.'s repeated requests that he
discontinue contacting her, Lopez frequently called and
sought and obtained a no-contact order against Lopez in April
2015 after he again came to her home without invitation.
Nevertheless, Lopez continued calling and texting J.S.,
leaving messages with sexual overtones, and sending her
flowers, liquor, and food.
13, Lopez texted her a picture of his hand around his erect
penis, accompanied by the message, "Me in my
glory." On August 1, Lopez texted J.S. informing her
that he planned to visit her property that evening. J.S.
alerted the sheriff's department. During the night, a
deputy observed Lopez approaching and ascending a staircase
to the upper deck of J.S.'s home. The deputy announced
his presence as Lopez peered through J.S.'s window.
was arrested and charged with one count of stalking-
violation of protective order or injunction, a class
"D" felony, in violation of Iowa Code sections
708.11(2) and 708.11(3)(b)(1). He was subsequently
also charged with indecent exposure, a serious misdemeanor,
in violation of Iowa Code section 709.9, as a consequence of
the text-message transmission of the still photograph of his
genitals to J.S.
trial, Lopez's counsel filed a motion for judgment of
acquittal, contending both the stalking and the
indecent-exposure counts should be dismissed for lack of
sufficient evidence. Specifically, Lopez's counsel
asserted although the evidence established numerous
no-contact order violations, the evidence presented in
support of the stalking charge was insufficient to establish
that Lopez knew or should have known his actions would place
J.S. in reasonable fear of death or bodily injury. With
respect to the indecent-exposure count, Lopez's counsel
contended that the evidence was insufficient only because the
photograph did not identify the genitals portrayed in the
photo as Lopez's, even though it was transmitted from his
court denied the motion for judgment of acquittal, and Lopez
was convicted on both counts. Lopez was sentenced to an
indeterminate term of up to five years in prison plus a
suspended fine and a $100 surcharge under Iowa Code section
911.2B on the stalking conviction. The court also imposed a
determinate term of one year in jail plus a fine, $100
surcharge, and special sentence of ten years under Iowa Code
section 903B.2 on the indecent-exposure conviction. The court
ordered that the sentences be served consecutively.
appeal, Lopez asserts two propositions: (1) his defense
counsel provided ineffective assistance in failing to
challenge the sufficiency of the evidence supporting the
indecent-exposure charge,  and (2) the district court imposed an
illegal sentence in violation of the Ex Post Facto Clauses of
the Iowa and United States Constitutions in ordering him to
pay the $100 surcharge for both convictions.
Scope and Standards of Review.
defense counsel did not challenge the sufficiency of the
evidence supporting the indecent-exposure charge on the
grounds that Lopez did not expose himself by texting J.S. a
still, digital image of his genitals, error was not preserved
for our review on that claim. See State v. Harris,
891 N.W.2d 182, 185 (Iowa 2017); State v. Brubaker,
805 N.W.2d 164, 170 (Iowa 2011). Accordingly, our review of
the merits of that claim turns on whether Lopez's counsel
rendered ineffective assistance. See Harris, 891
N.W.2d at 185. Claims of ineffective assistance of counsel
implicate the constitutional right to counsel; therefore, we
review the claim de novo. State v. McNeal, 867
N.W.2d 91, 99 (Iowa 2015).
generally review claims that a sentence is illegal for
correction of errors at law; however, when a claim challenges
the constitutionality of a sentence, we review it de novo.
State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014).
Ineffective Assistance of Counsel.
first contends his counsel provided ineffective assistance in
failing to challenge the sufficiency of the evidence
supporting the indecent-exposure conviction. To succeed on
this contention, Lopez must establish by a preponderance of
the evidence that "(1) his trial counsel failed to
perform an essential duty, and (2) this failure resulted in
prejudice." Harris, 891 N.W.2d at 185 (quoting
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006));
accord Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064 (1984).
establish the first prong, Lopez must demonstrate his trial
counsel's performance fell below the standard demanded of
a reasonably competent attorney. Ledezma v. State,
626 N.W.2d 134, 142 (Iowa 2001) (en banc). We presume counsel
acted competently and measure counsel's performance
against "prevailing professional norms."
Id. (quoting Strickland, 466 U.S. at 688,
104 S.Ct. at 2065). Because counsel does not have a duty to
raise a meritless issue, Harris, 891 N.W.2d at 186,
we now turn to the question of whether Lopez's challenge
to the sufficiency of the evidence has merit.
deciding this case, we must consider the meaning of the word
exposes in Iowa Code section 709.9. "When
interpreting a statute, we seek to ascertain the
legislature's intent." Dakota, Minn. & E.
R.R. v. Iowa Dist. Ct., 898 N.W.2d 127, 136 (Iowa 2017).
We begin with the text of the statute, construing
"technical words and phrases, and such others as may
have acquired a peculiar and appropriate meaning in law, . .
. according to such meaning, " and all others
"according to the context and the approved usage of the
language." Iowa Code § 4.1(38) (2018); accord
Second Injury Fund of Iowa v. Kratzer, 778 N.W.2d 42, 46
(Iowa 2010). After having done so, we determine whether the
statute's language is ambiguous. Rolfe State Bank v.
Gunderson, 794 N.W.2d 561, 564 (Iowa 2011).
statute is ambiguous 'if reasonable minds could differ or
be uncertain as to the meaning of a statute.' "
Id. (quoting Holiday Inns Franchising, Inc. v.
Branstad, 537 N.W.2d 724, 728 (Iowa 1995)); accord
City of Waterloo v. Bainbridge, 749 N.W.2d 245, 248
(Iowa 2008). Ambiguity may arise from the meaning of specific
words used and "from the general scope and meaning of a
statute when all its provisions are ...