Opinion
No. 2-855 / 01-1657
Filed January 15, 2003
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.
Klaassen appeals from the judgment and sentence following his convictions for voluntary manslaughter and neglect or abandonment of a dependent person. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller and Charles Thoman, Assistant Attorneys General, and Edward Bjornstad, County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Korey Klaassen appeals from the judgment and sentence following his convictions for voluntary manslaughter and neglect or abandonment of a dependent person. He claims the district court should have merged his prior sentence for child endangerment with his sentence for neglect or abandonment of a dependent person. He also claims his trial counsel was ineffective for failing to raise double jeopardy and collateral estoppel challenges to his sentence. We affirm.
I. Background Facts and Proceedings. On March 19, 1998, Klaassen, while bathing his five-month-old son, Kyler, in the kitchen sink, dropped the child on his head. After the fall, Kyler was abnormally fussy. Although Kyler was examined by a doctor that day because he was vomiting and suffering from flu-like symptoms, Klaassen did not mention the fall to anyone. The next day, March 20, while again in the care of Klaassen, Kyler rolled off a sofa. After the fall from the sofa, several witnesses observed Kyler and thought he seemed normal. Later that day, Klaassen called Kyler's mother, Bonnie, and told her that Kyler was not breathing. Bonnie told Klaassen to hang up and call 911, but he did not. She eventually had to hang up on him and call 911 herself. When emergency medical personnel arrived, they found Kyler lying on the couch, unresponsive. His skin was a bluish-gray color, and he had no pulse and was not breathing. The medical personnel performed CPR, but upon Kyler's arrival the hospital, he was pronounced brain-dead. It was determined that Kyler had been deprived of oxygen for approximately thirty minutes. After examining Kyler, a trauma surgeon determined that Kyler suffered from both old and new injuries. Another doctor determined that Kyler had been shaken and had choked on his own vomit. Kyler died over a year later, on August 23, 1999.
On May 29, 1999, prior to Kyler's death, Klaassen was convicted of child endangerment causing injury and sentenced to a ten-year term of incarceration. Upon Kyler's death, Klaassen was charged with first-degree murder. Pursuant to a plea agreement with the State, Klaassen pled guilty to voluntary manslaughter and neglect or abandonment of a dependent child. The district court sentenced Klaassen to a ten-year indeterminate term of incarceration for each count and ordered the sentences to run consecutively.
Klaassen appeals, alleging the district court should have merged his prior sentence for child endangerment with his current sentence for neglect of a dependent child. He also contends his counsel was ineffective for failing to raise double jeopardy or collateral estoppel challenges.
II. Standard of Review. Our review of challenges to the legality of a merger decision by the district court is for errors at law. State v. Bullock, 638 N.W.2d 728, 731 (Iowa 2002). We review claims of constitutional violations, including ineffective assistance of counsel claims, de novo. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001).
III. Discussion. Klaassen claims that neglect of a dependent person is a lesser-included offense of child endangerment and that the sentences for the two crimes should merge under Iowa Code section 701.9 (1999). To commit child endangerment, a defendant must knowingly act "in a manner that creates a substantial risk to a child or minor's physical, mental or emotional health or safety." Iowa Code § 726.6(1)(a). To commit neglect of a dependent person, a defendant must knowingly or recklessly expose a dependent person to a hazard or danger against which such person cannot reasonably be expected to protect himself. See Iowa Code § 726.3. Klaassen contends his convictions for these two crimes should merge because it would be impossible to knowingly act in a manner creating a substantial risk to a child without knowingly exposing the child to a hazard or danger against which the child could not reasonably protect himself. While this argument has some appeal, Klaassen has failed to establish that his guilty plea in this case was based upon the same act(s) charged in the earlier child endangerment case. Klaassen, from March 19 through March 20, engaged in a series of acts, any of which could be the basis for a child endangerment charge or a charge of neglect of a dependent person. He dropped Kyler on his head while bathing him. He intentionally withheld this information from Kyler's mother and doctor, even though the child was vomiting and acting abnormally. He allowed the child to roll off the couch while in his care. When he realized Kyler was not breathing, he did not call emergency personnel, but instead called Kyler's mother. And, of course, the State charged Klaassen with committing the act which ultimately led to Kyler's death — he shook Kyler until his brain became bruised and swollen, causing him to vomit and choke. Klaassen "knowingly pled to-and the record minimally supports a factual basis for — two separate crimes." State v. Walker, 610 N.W.2d 524, 527 (Iowa 2000). Because the records in the two cases sufficiently establish more than one act of endangering Kyler or exposing Kyler to harm, we find no error with the district court's decision not to merge the judgment and sentences for child endangerment and neglect of a dependent person, and we affirm.
Section 701.9 states that "[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only."
We also find no merit in Klaassen's ineffective assistance of counsel claim. Because the two offenses were not subject to merger, Klaassen's counsel had no duty to raise challenges based on double jeopardy or collateral estoppel.