from the Iowa District Court for Polk County, William Patrick
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Bower, P.J., McDonald, J., and Carr, S.J.
Cook appeals from the district court's denial of his
application for postconviction relief.
judge assigned by order pursuant to Iowa Code section
Cook Jr. appeals from the district court's denial of his
application for postconviction relief (PCR). He argues his
sentence is cruel and unusual due to gross disproportionality
and his age, and he asserts his other claims are not
time-barred under recent precedent. We find his sentence is
constitutional and his other claims are time-barred even
considering recent precedent. Therefore, we affirm.
Background Facts and Proceedings
was born in September 1982. On October 30, 2003, Cook was
found guilty following a bench trial of five counts of
lascivious acts with a child-a class "D"
felony-occurring in September, October, and November 2002.
See Iowa Code § 709.8 (2002). Prior to trial,
he stipulated he had two prior convictions for sexually
predatory offenses in Iowa, specifically indecent
exposure. See id. § 709.9. On December
4, 2003, the district court applied the enhanced sentencing
under Iowa Code section 901A.2 and sentenced him to terms of
incarceration not to exceed twenty-five years on each count
of lascivious acts with a child, with the sentences on two
counts run consecutively and all other sentences run
concurrently for a total term of incarceration not to exceed
fifty years. Consistent with Iowa Code section
901A.2(3), he was required to serve at least 85% of his
sentences. We affirmed his convictions and sentences on
direct appeal in State v. Cook, No.
03-1992, 2005 WL 291546, at *2 (Iowa Ct. App. Feb. 9, 2005).
Procedendo issued March 10, 2005.
filed his first application for PCR on June 16, 2005. The
district court denied his application, and we affirmed the
denial in Cook v. State, No. 10-1877, 2012 WL
1453978, at *1 (Iowa Ct. App. Apr. 25, 2012). Procedendo on
his first application issued May 29, 2012. He filed his
second application for PCR on November 6, 2012. The district
court dismissed his second application on November 1, 2013,
and he did not appeal. He filed this application for PCR, his
third, on April 7, 2016. In separate rulings, the district
court found his sentence was not cruel and unusual or
otherwise unconstitutional and his other claims were
time-barred. The court ultimately denied his application on
July 21, 2017. He now appeals.
Standard of Review
review ineffective-assistance-of-counsel claims de novo.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
"In order to succeed on a claim of ineffective
assistance of counsel, a defendant must prove: (1) counsel
failed to perform an essential duty; and (2) prejudice
resulted." Id. The defendant must prove both
prongs by a preponderance of the evidence. Id. at
argues his sentence is grossly disproportionate to his crimes
under the Eighth Amendment to the United States Constitution
and Article 1, Section 17 of the Iowa Constitution. See
State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009)
(citing Solem v. Helm, 463 U.S. 277, 292 (1983)).
In evaluating whether a lengthy sentence is grossly
disproportionate under the Cruel and Unusual Punishment
Clause, the Supreme Court has developed a three-part test.
The first part of the test, sometimes referred to as the
threshold test, involves a preliminary judicial evaluation of
whether the sentence being reviewed is grossly
disproportionate to the underlying crime. This preliminary
test involves a balancing of the gravity of the crime against
the severity of the sentence. The Supreme Court has not
articulated what factors go into this initial determination,
but has stated that ...