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Cook v. State

Court of Appeals of Iowa

February 20, 2019

GENE DUWAYNE COOK, JR., Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, William Patrick Kelly, Judge.

          Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Considered by Bower, P.J., McDonald, J., and Carr, S.J. [*]

         Gene Cook appeals from the district court's denial of his application for postconviction relief. AFFIRMED.

         *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).

         Gene 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.

         I. Background Facts and Proceedings

         Cook 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.[1] 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.[2] 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.

         Cook 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.

         II. Standard of Review

         We 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 196.

         III. Grossly Disproportionate

         Cook 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 ...

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