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State v. Lopez

Supreme Court of Iowa

February 2, 2018

STATE OF IOWA, Appellee,

         Appeal from the Iowa District Court for Buchanan County, Linda M. Fangman, Judge.

         A 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.

          Mark C. Smith, Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant Attorney General, Shawn Harden, County Attorney, and Jenalee Zaputil, Assistant County Attorney, for appellee.

          HECHT, JUSTICE.

         The 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.

         I. Background Facts and Proceedings.

         Jose 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.

         After 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 texted her.

         J.S. 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.

         On June 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.

         Lopez 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.

         At 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 phone number.

         The 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.

         On 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, [1] 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.

         II. Scope and Standards of Review.

         Because 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).

         We 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).

         III. Analysis.

         A. Ineffective Assistance of Counsel.

         Lopez 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).

         To 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.

         In 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).

         "A 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 ...

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