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State v. Petty

Supreme Court of Iowa

March 22, 2019

STATE OF IOWA, Appellee,
v.
KENNETH EDWARD PETTY, Appellant.

          Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.

         A defendant appeals his convictions and sentences for lascivious acts with a child and sexual exploitation of a minor.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Katie Krickbaum, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Patrick J. Eppler, Assistant County Attorney, for appellee.

          WIGGINS, JUSTICE.

         A defendant who pled guilty to lascivious acts with a child and sexual exploitation of a minor challenges his guilty pleas and sentences. He also claims he was denied the right to counsel. He claims the district court failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b) in accepting his guilty pleas, did not adequately inquire into the alleged communication breakdown in the attorney-client relationship, imposed a surcharge in violation of the Ex Post Facto Clauses of the Iowa and United States Constitutions, and erroneously ordered restitution without first determining his reasonable ability to pay.

         We find that the defendant did not preserve error on his guilty pleas challenge and that the record on appeal is insufficient to conduct an ineffective-assistance-of-counsel analysis. We find the record on appeal is also insufficient to determine whether the district court adequately inquired into the alleged communication breakdown. We leave both of these claims for postconviction relief if the defendant wants to pursue them.

         We next find the imposition of the surcharge violated the Ex Post Facto Clauses and the district court erroneously ordered restitution without first conducting the applicable reasonable-ability-to-pay analysis. We vacate these portions of the defendant's sentences and remand for entry of a corrected sentence with respect to the surcharge and for resentencing in light of this opinion and our opinion in State v. Albright, ___ N.W.2d ____(Iowa 2019), with respect to restitution.

         I. Facts and Proceedings.

         On December 29, 2016, the State charged Kenneth Petty for crimes related to his sex acts with two minors in two separate cases. First, the State charged Petty with four counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1, 709.4, and 903B.1 (2015), and three counts of sexual exploitation of a minor, in violation of sections 728.12, 903B.1, and 903B.2. These charges arose after M.S., the minor daughter of Petty's neighbor, alleged that she had been having sex with Petty for approximately two years and that Petty had videotaped the two of them on at least one occasion. In the subsequent investigation, officers discovered a video depicting Petty engaging in a sex act with M.S. when M.S. was fifteen or sixteen years of age and Petty was in his mid-forties.

         Separately, the State charged Petty with one count of sexual abuse in the second degree in violation of Iowa Code sections 709.1(3), 709.3(1)(b), 709.3(2), and 903B.1. These charges arose after Z.C., the daughter of Petty's romantic partner, alleged Petty fondled her breasts and put his finger in her vagina.

         The district court set trial for the case involving M.S. for January 17, 2018, and trial for the case involving Z.C. for the following week. On January 4, the State amended the trial information to charge Petty with two counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1, 709.4, and 903B.1, instead of four counts as previously charged.

         On January 17, following a hearing on the parties' motions in limine and while the jury venire was present and ready in the courtroom, the parties announced Petty would enter an Alford plea based on his acceptance of the State's plea offer. Under the terms of the plea offer, Petty would plead guilty to sexual exploitation of a minor, a class "C" felony, for the charges stemming from the case involving M.S. Then for the case involving Z.C., Petty would plead guilty to lascivious acts with a child, also a class "C" felony, in violation of Iowa Code sections 709.8(1)(a) and 709.8(2)(a). Petty would receive a ten-year indeterminate prison term on each charge, which he would serve concurrently for a total of ten years in prison. He would also be subject to the sex offender provisions and lifetime parole provisions.

         After reading through the terms of the agreement, the court asked Petty how he pled to the amended charge of lascivious acts in the case involving Z.C. Petty pled guilty. The court asked, "And you understand that's a Class C felony carrying up to ten years in prison and/or a $10, 000 fine? You understand that's the maximum penalty?" Petty confirmed, and he then pled guilty to sexual exploitation for the case involving M.S. The court set sentencing for March 12.

         On January 18, Petty's counsel filed a motion to withdraw, stating he could no longer effectively represent Petty because he could no longer communicate with Petty or agree with Petty on how to handle the cases. Defense counsel reported that Petty had texted him expressing his displeasure over the plea bargain and accusing defense counsel of having a conflict of interest. The court scheduled the hearing on the motion to withdraw for March 12, the same day of Petty's sentencing.

         On January 30, defense counsel filed a motion in arrest of judgment on Petty's behalf. The motion stated that Petty's guilty pleas were insufficient because Petty was not adequately advised of his constitutional rights, Petty did not fully understand his constitutional rights, the court did not establish a factual basis for the pleas, Petty did not adequately understand the penal consequences of his pleas, and "for whatever other reasons set out in [Petty's] Affidavit which is attached hereto." In the attached affidavit, Petty stated he was fully prepared for ...


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