Opinion
No. 5-010 / 03-1992
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Gene Duwayne Cook, Jr. appeals his convictions and sentences, following non-jury trial, for five counts of lascivious acts with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, John Sarcone, County Attorney, and Jeffrey Noble and Susan Cox, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Gene Duwayne Cook, Jr. appeals his convictions and sentences, following non-jury trial, for five counts of lascivious acts with a child in violation of Iowa Code section 709.8 (2001), with sentencing enhanced pursuant to Iowa Code section 901A.2(3). He contends his counsel was ineffective for failing to challenge the witness identification process and that the district court did not have authority to impose a no-contact order as part of his sentence. We affirm his convictions and preserve his claim of ineffective assistance for a possible postconviction action.
Between September and November of 2002 several young girls reported that a man had solicited them to engage in a sex act and had made other sexual comments to them. Each of the girls was under the age of fourteen at the time of the incidents, and each encountered the man in the same general vicinity, near the middle school they attended. Des Moines Police Detective Thomas Follett learned of the solicitations and began investigation of the incidents on October 31, 2002. On November 1, 2002, Follett encountered a man who matched the descriptions given by the girls. He encountered him in the vicinity in which the incidents had occurred. He approached the man, whom he described as very nervous, and the man identified himself as the defendant, Cook. Follett also noticed Cook was carrying an orange Hy-Vee sack, just as several of the girls had described.
Follett then compiled a photographic lineup, which included a photograph of Cook from a police file, to show to the girls for identification purposes. He showed the photo array to two of the girls and they were unable to identify Cook as the man who had solicited them. After Follett learned there had been an incident on November 1, 2002, he compiled another photo lineup which again included a picture of Cook. Follett thought this second lineup contained a "better" picture of Cook. The first lineup was not maintained and could not be recreated at trial. The second lineup was showed to four of the five girls. All four of the girls identified Cook as the man who had approached them, although one hesitated and stated she was less than "100% sure." Follett testified at trial that in the process of presenting the photographic lineup to the girls he would "let them know if they were successful."
Cook first argues Detective Follett conducted improperly suggestive identification procedures, causing a likelihood of irreparable misidentification, both by repeating his picture in the second photo lineup and by suggesting to the witnesses they had been "successful" if they chose Cook. He claims his trial counsel had a duty to discover the identification process irregularities and was ineffective for not challenging the photographic lineup procedures either before or during trial.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). "[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle, 652 N.W.2d at 203.
As set forth above, Cook can succeed on his ineffectiveness claim only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on this issue, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on this claim. Under these circumstances, we pass this issue in this direct appeal and preserve it for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
Cook also contends the district court did not have authority to impose a no-contact order prohibiting him from contacting the five girls or their families as part of his sentence. We review a claim the sentence imposed is beyond the court's authority for correction of errors at law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).
When a term of sentence is not made a condition of probation, it must be specifically authorized in the Iowa Code. See State v. Manser, 626 N.W.2d 872, 875 (Iowa Ct.App. 2001). If a sentence is not authorized by statute it is void. Id. at 874. Here the sentencing court's imposition of the no-contact order was in fact specifically authorized by Iowa Code section 901.5(7A) (Supp. 2003). Section 901.5(7A) (a) provides
The court may order the defendant to have no contact with the victim of the offense, persons residing with the victim, members of the victim's immediate family, or witnesses to the offense if the court finds that the presence of or contact with the defendant poses a threat to the safety of the victim, persons residing with the victim, members of the victim's immediate family, or witnesses to the offense.
This new, general provision authorizes the court to impose no-contact orders in a variety of circumstances and is not restricted to any particular offense. This section went into effect on July 1, 2003 and thus was in effect when Cook was sentenced on December 4, 2003. Accordingly, the court had the authority to impose a no-contact order as part of Cook's sentence.
For the reasons set forth above, we affirm Cook's convictions and sentences and preserve his specified claim of ineffective assistance of trial counsel for a possible postconviction relief action.