Opinion
No. 2-010 / 01-0365.
Filed May 15, 2002.
Appeal from the Iowa District Court for Scott County, JOHN A. NAHRA, Judge.
Dale Ayers appeals his convictions and sentences for second-degree murder, willful injury, and assault. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Dale Ayers appeals his convictions and sentences for second-degree murder, willful injury, and assault. We affirm.
I. Factual and Procedural Background.
A reasonable juror could find the following facts from the record in this case. Ayers and Paula Heiser lived together in an encampment behind a business district in Davenport, Iowa. They supported themselves in part by collecting cans and pawning items found in garbage cans. John Rhoades, an acquaintance of Ayers and Heiser, lived at a nearby camp with several other transients. On August 15, 2000, during Ayers's stay in a detoxification center, Rhoades and Terry Ehlers drank and conversed with each other. Ehlers asked Heiser to perform oral sex in consideration for five dollars. Heiser, who was extremely offended, firmly rejected the offer. Rhoades and Ehlers departed the camp.
When Ayers returned to the encampment the following day, Heiser informed him of Ehlers's affront. On August 17, 2000, Ehlers returned to the area to speak to Rhoades. Heiser saw Ehlers and identified him to Ayers as the person who had offended her. Ayers retrieved a club he referred to as his "goon stick." The club's handle was taped to allow a good grip in the event Ayers found it necessary to protect himself from other homeless people who frequented the area. Heiser and Ayers approached Ehlers and ordered him to leave the area. When Ehlers ignored the order, Ayers struck him in the back and the face with the club. Ehlers fell to his knees and Ayers then kicked him in the ribs. After rifling through the victim's wallet, Ayers drove Ehlers' truck to a grocery store to purchase whiskey and attempted to dispose of the weapon.
Ehlers died as a result of the attack. Ayers was charged with murder in the first-degree, willful injury, and assault. After a jury trial, he was convicted of murder in the second-degree and both of the lesser charges. He was sentenced to fifty years for second-degree murder, ten years for willful injury, and thirty days for assault. Ayers was ordered to pay restitution pursuant to Iowa Code section 910.3B(1) (1999) in the amount of $150,000. On appeal, Ayers contends (1) the evidence of malice aforethought was insufficient to support his conviction of second-degree murder and (2) his trial counsel was ineffective in failing to raise due process and supremacy clause challenges to section 910.3B(1).
II. Scope of Review.
We review challenges to the sufficiency of the evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, "including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record." State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). All evidence is considered, "not just that of an inculpatory nature." Id. Direct and circumstantial evidence are equally probative. State v. Sinclair, 622 N.W.2d 772, 778 (Iowa Ct. App. 2000). A verdict can rest on circumstantial evidence alone. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). Evidence that merely raises suspicion, speculation, or conjecture will not be considered substantial evidence. Lambert, 612 N.W.2d at 813. The weight of the evidence and credibility of witnesses are to be determined by the factfinder, as this Court's review of the evidence is not de novo. State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984).
We review constitutional claims and claims of ineffective assistance of counsel de novo. State v. Hamrick, 595 N.W.2d 492, 493 (Iowa 1999); State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
III. Sufficiency of the Evidence.
Malice aforethought is an essential element of second-degree murder. State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993). "It is generally defined as `a fixed purpose or design to do some physical harm to another which exists prior to the act committed.'" State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct. App. 1996) (quoting State v. Sharpe, 304 N.W.2d 220, 226 (Iowa 1981)). Ayers admits he was angry when he confronted Ehlers, but contends on appeal that anger is not tantamount to malice aforethought.
We have previously considered evidence of a defendant's anger when assessing the sufficiency of evidence supporting a finding of malice aforethought. See Berry, 549 N.W.2d at 318; State v. Kinsel, 545 N.W.2d 885, 888 (Iowa Ct. App. 1996). The finding of malice in this case is not supported solely by evidence of the defendant's anger. Ayers used a club to administer blows to Ehlers's back and face, and then kicked the victim in the ribs after he had fallen to his knees. Furthermore, Ayers testified he intended to hurt Ehlers with each blow. We conclude reasonable inferences from this evidence are sufficient to support the jury's finding of malice aforethought. Accordingly, we affirm on this issue.
IV. Effectiveness of Counsel's Assistance.
a.) Due Process Issue . Ayers contends Iowa Code section 910.3B(1) is unconstitutional both facially and as applied. He challenges the statute on both procedural and substantive due process grounds and asserts his trial counsel was ineffective in failing to raise the issue in the district court.
Our legislature has determined that defendants convicted of a felony resulting in the death of a victim shall be ordered "to pay at least one hundred fifty thousand dollars in restitution to the victim's estate." Iowa Code § 910.3B(1). An order to pay restitution is a "fine" which serves "purposes normally associated with punishment such as retribution and deterrence." State v. Izzolena, 609 N.W.2d 541, 549 (Iowa 2000).
In Izzolena, our supreme court determined that the minimum restitution award of $150,000 does not on its face violate the Excessive Fines Clause of our state and federal constitutions. Although the minimum award of $150,000 was found by the court to be "high," it was not deemed grossly disproportionate to the gravity of the offenses covered under the statute. Izzolena, 609 N.W.2d at 551.
In Izzolena, our supreme court rejected the contention that section 910.3B is procedurally infirm because it does not provide an opportunity for a hearing prior to the imposition of a restitution order. Izzonlena, 609 N.W.2d at 553. The court reasoned (1) the $150,000 fine would be imposed only after a defendant was convicted of a felony causing death, (2) a pre-imposition hearing would have little or no effect on the outcome because $150,000 is the mandatory minimum award of restitution under the statute, and (3) section 910.3B authorizes a post-imposition hearing. Id. The court noted that "[a]dding additional or substitute procedures to the process would not provide any additional safeguards to the defendant, as sufficient procedure with respect to the imposition of the award are currently in place." Id. Moreover, the court recognized "the broad discretion we afford the legislature in fashioning punishments and penalties for crimes as it sees fit" and concluded section 910.3B "does not violate notions of due process." Id.
Iowa Code section 910.7 authorizes a hearing "[a]t any time during the period of probation, parole, or incarceration . . . at any time prior to the expiration of the offender's sentence" for the purpose of modifying "the plan of restitution or the restitution plan of payment, or both . . ." Iowa Code § 910.7.
Ayers presents a due process argument that differs slightly from the one faced by the court in Izzolena. He contends section 910.3B is procedurally flawed because it deprives the sentencing court of discretion on the question of restitution and negates judicial oversight. We disagree. "Our legislature is free to recognize the seriousness of certain crimes and impose greater punishment . . . for serious crimes by imposing mandatory restitution." Id. at 550.
Other mandatory minimum criminal penalties have withstood due process challenges. We conclude the statute is not facially violative of the due process clause. Because we are unable to discern a meaningful distinction between Ayers's assertion that the statute is facially invalid and his assertion that the enactment violated his due process rights as applied in this case, we reject his "as applied" procedural due process challenge for the same reasons.
See, e.g., United States v. Prior, 107 F.3d 654, 658-60 (8th Cir. 1997), cert. denied, 522 U.S. 824, 118 S.Ct. 84, 139 L.Ed.2d 41 (1997) (mandatory life sentence for possession with intent to distribute methamphetamine does not violate Due Process or Equal Protection Clauses, the Eighth Amendment, or separation-of-powers doctrine); United States v. Mendoza, 121 F.3d 441, 443 (8th Cir. 1997) (rejecting defendant's constitutional challenge to mandatory minimum sentences); United States v. Frieberger, 28 F.3d 916, 921 (8th Cir. 1994), cert. denied, 513 U.S. 1097, 115 S.Ct. 765, 130 L.Ed.2d 662 (1995) (holding "[a]bsent classifications based on race or some other forbidden or suspect ground, legislative decisions of the sort here in question — how severely to punish a particular class of drug-trafficking crimes — need only have a rational basis to survive" a due process challenge).
Ayers further posits that section 910.3B(1) violates his substantive due process rights because "it picks a compensatory/punitive award figure that is divorced from any showing of actual and case specific damages." We disagree. Our supreme court in State v. Klawonn, 609 N.W.2d 515, 519-22 (Iowa 2000) concluded "section 910.3B(1) is a `reasonable fit' between . . . government interests and the means through which the legislature has chosen to accomplish them," and therefore does not violate substantive due process.
Having found no merit in the procedural and substantive due process challenges raised by Ayers, we conclude his criminal trial counsel violated no duty when he failed to raise them in a timely fashion during the criminal proceedings. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to make a meritless motion).
b.) Supremacy Clause Issue . Section 910.3B provides that the obligation to pay restitution "shall not be dischargeable in any proceeding under the federal Bankruptcy Act." Ayers contends his counsel had a duty to challenge the statute as a violation of the Supremacy Clause in the federal constitution. We disagree. "Ultimately, federal law, not state law, governs the determination of the dischargeability of debt." Klawonn, 609 N.W.2d at 518, n. 1. We are not persuaded that state criminal restitution orders are dischargeable in bankruptcy proceedings. In re Wilson, 252 B.R. 739, 743 (B.A.P. 8th Cir. 2000) (holding debt for restitution on the debtor's conviction of a crime is excepted from discharge pursuant to 11 U.S.C. § 1328(a)(3)). In the absence of a meaningful conflict between the 910.3B and federal law, we find no violation of the Supremacy Clause.
AFFIRMED.