Opinion
22-1359
03-06-2024
JARED JOHN THOMAS OWENS, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
Christopher J. Roth of Roth Weinstein, LLC, Omaha Nebraska, for appellant. Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Pottawattamie County, Michael Hooper, Judge.
A postconviction-relief applicant appeals the denial of his application.
Christopher J. Roth of Roth Weinstein, LLC, Omaha Nebraska, for appellant.
Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.
Considered by Greer, P.J., and Schumacher and Ahlers, JJ.
AHLERS, Judge
The State charged Jared Owens with sexually abusing two separate children. The charges were filed in separate case files-one file for each child. In case number FECR154279, the State charged Owens with one count of sexual abuse in the second degree with respect to one child. In case number FECR154122, the State charged him with three counts of sexual abuse in the second degree with respect to the other child.
The State brought Owens to trial in case number FECR154279 first. After hearing several witnesses testify on the first day of trial, including the child, Owens asked to take the plea offer that had been made to him before trial. The State agreed. By the terms of the agreement, Owens agreed to plead guilty to one amended count in each case of lascivious acts with a child-each charge being a class "C" felony, in violation of Iowa Code section 709.8(1)(a) and (2)(a) (2009) in case number FECR154279 and section 709.8(1)(a) and (2)(a) (2015) in case number FECR154122. The agreement also called for the parties to recommend imposition of a ten-year sentence on each charge to be served consecutively.
The trial information in case number FECR154279 alleged the criminal conduct occurred between August 1, 2009, and June 1, 2010.
The trial information in case number FECR154122 alleged the criminal conduct occurred between November 2, 2015, and November 1, 2016.
Owens pleaded guilty to the two charges and was sentenced to the agreed-upon twenty-year indeterminate prison term. Although Owens filed a notice of appeal in both cases, he voluntarily dismissed both appeals. Owens then filed an application for postconviction relief (PCR), requesting his convictions be set aside in both cases. Following a trial, the district court denied Owens's application.
Owens appeals. He claims the prosecutor in case number FECR154279 committed prosecutorial misconduct on the first day of trial, his trial counsel was ineffective for not objecting to the purported misconduct, and counsel was ineffective for failing to ensure Owens's plea was made voluntarily and intelligently and supported by a factual basis.
I. Discussion
We begin by recognizing that, when Owens pleaded guilty, he waived all defenses and objections not intrinsic to his guilty plea, eliminating such claims as grounds for relief in postconviction proceedings. See State v. Carroll, 767 N.W.2d 636, 641 (Iowa 2009). Accordingly, we cannot consider Owens's direct claim that the prosecutor committed misconduct on the first day of trial in case number FECR154279.
We move on to Owens's claims of ineffective assistance of trial counsel. Because ineffective-assistance-of-counsel claims raise a constitutional issue, our review is de novo. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). With de novo review, we give weight to the district court's fact findings, especially relating to witness credibility, but we are not bound by them. Id.
A PCR applicant alleging ineffective assistance of counsel must prove a two-pronged claim by a preponderance of the evidence: (1) counsel failed to perform an essential duty; and (2) the failure resulted in prejudice. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). Both prongs must be established. Id. Accordingly, we need not address the remaining prong if the applicant failed to prove the other. Id.
As to the first prong, we presume the attorney performed competently. Id. The attorney's performance is measured against "the standard of a reasonably competent practitioner." Id. "We assess counsel's performance 'objectively by determining whether [it] was reasonable, under prevailing professional norms, considering all the circumstances.'" Id. (alteration in original) (citation omitted).
To satisfy the second prong, an applicant must show that prejudice resulted from counsel's failure to perform an essential duty. Id. An applicant must show "that the probability of a different result is sufficient to undermine confidence in the outcome." Id. at 869 (quoting State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012)). More precisely, within the context of a guilty plea, an applicant must show that there is a reasonable probability that, but for counsel's errors, the applicant "would not have pleaded guilty and would have insisted on going to trial." Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021) (citation omitted).
A. Was counsel ineffective for failing to object to misconduct?
We begin with Owens's contention that his trial counsel was ineffective for failing to object to prosecutorial misconduct, which he claims resulted in him feeling cornered into seeking the plea agreement. "[P]rosecutorial misconduct involves either the prosecutor's reckless disregard of a duty to comply with the applicable legal standard or obligation, or a prosecutor's intentional statements in violation of an obvious obligation, standard, or applicable rule ...." State v. Coleman, 907 N.W.2d 124, 139 (Iowa 2018).
Owens's claim centers around testimony elicited from the child witness in his trial. The child testified on direct examination:
Q. And when you were watching a movie, what happened? A. He put his hand down my pants.
Q. So when you had-you said down your pants. Did you have-you had pants on? A. Yeah. It was either pants or shorts, I don't remember.
Q. And then did you have anything on underneath your pants or shorts? A. I had underwear on.
Q. And so when you said that he put your (sic) hand down your pants, was it under or over your underwear? A. Under my underwear.
Q. And so when he put his hand inside your underwear, how far down did-did his hand go? .... [defense objection that was overruled]
Q. Where did his hand go? A. It-it went down my pants like- it didn't go all the way down but it went-it went almost down. I don't know how to explain it.
Q. Could you stand up and show the jury where his hand went when he went inside your pants and underwear? A. It was like right here (indicating). He didn't go down further than that but it was right here.
Q. And so that part that you showed is covered by underpants; is that correct? A. Yeah.
On cross-examination, defense counsel tried to impeach the child with her pretrial deposition testimony as follows:
Q. Okay. Do you remember stating-when asked if [the defendant] touch[d] your private parts-you said not to my private parts? A. Yeah. It was-I didn't mean it like-I didn't understand like-I didn't know like this part was my private part right here (indicating). Like, I didn't understand that this part was my private part. That-I-I was told that it was right there, that that was my private part. But now that I understand that's my private part-
Q. So did [the prosecutor] tell you that? A. Yes.
Q. She told you that? A. Yeah.
Q. But prior to that you had stated he did not touch your private parts? A. Yeah.
Q. Okay. And when did you talk to [the prosecutor] about your private parts? A. It was-We met like after the deposition. She asked me about it and that's when she told me.
Q. What did she tell you? A. That this part was my private part (indicating). That-like where a woman grows hair, that's where a private part starts. And then-until then.
Q. But that wasn't your understanding of the definition prior to that, was it? A. No.
Owens argues this exchange on cross-examination established that the prosecutor coached the child to give perjured testimony-amounting to prosecutorial misconduct. We disagree.
First, Owens's appellate brief states, "During depositions [the child] stated that Owens never touched her private part, yet at trial, [the child] stated that Owens had." But a careful review of the testimony reveals the child never testified that Owens had touched her "private part," instead she visually indicated where on her body Owens had touched, as she had also done during her deposition. Second, the district court itself questioned the child, asking, "Did [the prosecutor] tell you to say that in court today?" The child responded, "No." Third, nothing suggests the prosecutor did anything more than educate the complaining witness on what the term "private part" meant within the context of the criminal proceeding. See Iowa Code § 702.17 (2009) (defining "sex act" to include "contact between the finger or hand of one person and the genitalia . . . of another person"); State v. Martens, 569 N.W.2d 482, 486 (Iowa 1997) (concluding the term "genitalia" includes "the vulva, which includes the symphysis pubis, a prominence covered by hair"). To the extent that education amounted to coaching, it was not impermissible coaching. See DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). Accordingly, the prosecutor did not commit misconduct when preparing the child to testify. See Coleman, 907 N.W.2d at 139. As a result, Owens's trial counsel had no duty to object and was not ineffective for failing to raise a meritless objection. See State v. Schlachter, 884 N.W.2d 782, 785 (Iowa Ct. App. 2016).
From the record, it appears that both parties used the phrase "private part" as a synonym for "genitals."
B. Was counsel ineffective for failing to ensure Owens's plea was voluntary, intelligent, and supported by a factual basis?
We move on to Owens's claim that his trial counsel was ineffective for failing to ensure his plea was entered voluntarily and intelligently and supported by a factual basis. Owens raises several complaints about the plea-taking process. We echo the PCR court's observation that the process was atypical and had its flaws.
At the PCR trial, Owens's trial counsel described the plea process as "bizarre."
The plea discussions and ultimate plea process occurred in the courtroom on the second day of trial when the jury was not present. According to Owens's trial counsel, once the prosecutor acknowledged to the court that the plea offer was still available, Owens-before defense counsel could do or say anything- stated that he wanted to take the deal. Owens then talked with the judge about the plea "and then he proceeded to talk to anybody who would listen to him, including the victims' families." Unprompted, but on the record, Owens lamented "what's the odds of winning all these, you know. Might as well cut this deal so you ain't got to worry about it and I ain't got to worry about the mandatory sentencing."Later in the plea hearing, Owens explained, "Well, I mean who wouldn't believe a child? That's the way I'm feeling." When the court assured Owens the trial could move forward if he had any doubts about pleading guilty, Owens responded, "I appreciate, you know, Your Honor, what you're saying to me but I don't want to take a chance losing my life." When responding to an inquiry about whether the opportunity to avoid a mandatory minimum sentence served as a motivator to accept the plea offer, Owens stated, "Yeah, that's the motivation why I'm taking this plea now because I believe the jury will believe a young child like that." The court then went on to explain some of the rights Owens would give up by pleading guilty.
The reference to mandatory sentencing stems from the fact that the four charges Owens was facing in the two cases were each a class "B" felony carrying a twenty-five-year sentence with a mandatory minimum of seventy percent (i.e., seventeen and one-half years), whereas each amended charge to which Owens was pleading guilty was a class "C" felony carrying a ten-year sentence with no mandatory minimum.
Owens claims counsel was ineffective for not intervening when the trial court did not advise him of (1) the nature of the charges, (2) his right against selfincrimination, (3) his right to cross-examine witnesses, (4) his right to present his own witnesses, and (5) his right to compel witnesses to appear for trial. The State contests error preservation, arguing Owens only raised the first two issues before the PCR court. Regardless of whether Owens's last three claims are preserved, we find them without merit. The trial court asked Owens,
You understand that you're giving up your right to further-to confront the witnesses that the State has yet to call to testify against you and you're giving up your right to testify and giving up your right to call your own witnesses and compel their attendance to appear here by virtue of subpoena? You understand you're giving up those rights?
Owens responded, "Yes." This exchange defeats the latter three of Owens's challenges to the plea process.
As for Owens's remaining claims, including his claim that he was not accurately informed of the elements of the offense to which he was pleading guilty, we must review them using the ineffective-assistance-of-counsel framework. We resolve those claims under the prejudice prong. See Dempsey, 860 N.W.2d at 868 .
To satisfy his burden under the prejudice prong of the ineffective-assistance-of-counsel framework, Owens must prove there is a reasonable probability that he would have rejected the plea offer and instead insisted on going to trial-both by completing the first trial and going to trial in the second case-had counsel informed him fully of the nature of the charges, the elements of the offense, and his right against self-incrimination. See Doss, 961 N.W.2d at 709. Under the facts of this case, we conclude there was not a reasonable probability that Owens would have insisted on completing the first trial and insisted on going to trial on the second case. In reaching this conclusion, we note two key points. First, during his testimony in the PCR trial, Owens did not claim that he would have insisted on going to trial in both cases if the claimed deficiencies in the plea proceeding had not occurred. See Sothman, 967 N.W.2d at 526 (considering the applicant's failure to testify that she would have insisted on going to trial when determining the applicant failed to establish the prejudice prong of her ineffective-assistance-of-counsel claim). Second, the trial on the first case had already started, and Owens believed it did not look good for him. As a result, he initiated the discussion about reopening plea discussions. He was emphatic that he wanted to accept the pretrial plea offer to avoid a mandatory minimum sentence, even spontaneously explaining his motivation at times. Even when the court assured him the trial could continue, Owens was clear that he did not want to risk a conviction for second-degree sexual abuse. As the PCR court put it, "No credible evidence suggests that there is any probability that, but for [these] in-court error[s], Owens would have not plead[ed] guilty but instead would have proceeded with trial." We agree with the PCR court. As Owens did not establish the prejudice necessary to entitle him to any relief, the PCR court was right to deny Owens's application based on his remaining claims of ineffective assistance of counsel.
The State concedes that all elements of lascivious acts with a child were not fully set out in the record. The prosecutor stated the elements but failed to include the intent element-that the conduct was done with the specific intent to arouse or satisfy the sexual desires of Owens or the child-and misstated that the age of the victim had to be under the age of twelve years, instead of under the age of fourteen years.
At the PCR hearing, defense counsel stated he had previously discussed with Owens whether Owens wanted to testify at trial and had previously explained his right against self-incrimination.
II. Conclusion
We cannot consider Owens's direct prosecutorial-misconduct claim, as he waived any such claim by pleading guilty. Owens's criminal trial counsel did not breach any duty by failing to make a meritless objection claiming prosecutorial misconduct based on improper coaching of a State's witness. Owens also failed to establish the prejudice prong on his other ineffective-assistance-of-counsel claims. Therefore, we affirm the denial of Owens's PCR application.
AFFIRMED.