Opinion
No. 3-124 / 02-0545
Filed May 14, 2003
Appeal from the Iowa District Court for Muscatine County, Gary D. McKenrick (motion to suppress) and Patrick J. Madden (trial and sentencing), Judges.
Defendant-appellant, Paul Kyle Quigley, appeals from the judgment and sentence entered after he was convicted of three counts of sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Richard R. Phillips, County Attorney, and Dana Christiansen, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
Defendant-appellant, Paul Kyle Quigley, appeals from the judgment and sentence entered after he was convicted of three counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(2) (2001). Defendant, who is mentally challenged, contends the trial court erred in (1) denying his motion to suppress statements he made to police as they were the result of coercive conduct by his father, and (2) requiring him, a mentally challenged defendant, to serve eighty-five percent of a twenty-five year sentence without the possibility of parole or work release, which he claims is cruel and unusual punishment. We affirm.
Defendant was charged as the result of alleged improper conduct with his eleven-year-old nephew who spent overnights at the home where defendant lived with his father and stepmother. The allegations came to light when the nephew attended a school lecture on "good and bad touches." The child told a teacher who, together with the school counselor, advised the child's mother. The Department of Human Services was contacted as was the police.
At the time defendant had just had his eighteenth birthday, but had the mental age of a person ten to twelve years of age and was in special education classes at the local public school.
Defendant's father was angry on learning of the accusations. He yelled at defendant and told him he did not get an attorney because he did not deserve one and that he had committed a crime and was going to do time. Defendant's father testified he told defendant to go the police station and told him he had no choice.
When Defendant went to the police station, he was told he was not under arrest, was verbally questioned, and made an oral confession. Defendant then wrote out a statement which was admitted in evidence at trial. Defendant was at the police station for about an hour.
We first address defendant's claim on appeal that the district court erred in denying his motion to suppress his confession because it was a result of his father's coercive conduct and was inherently unreliable. The State contends this issue is not preserved for appellate review.
The defendant moved to suppress his confession because it "was not voluntarily obtained by the State of Iowa, but obtained by the exercise of duress and coercion so as to render the confession involuntary when considering the totality of the circumstances." The district court concluded "the statements were voluntary in the context of the Defendant's rights to due process under the federal and state constitutions."
On appeal, defendant does not claim a constitutional due process violation, but argues his father's coercive conduct rendered his confession inherently unreliable, relying on State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992). The claim raised on appeal is not the claim raised and decided by the district court; consequently the claim is not preserved for review. See State v. Williams, 207 N.W.2d 98, 110 (Iowa 1973) (holding that one attempting to exclude evidence by objection or motion has a duty to indicate specific grounds to alert the court to the question raised and enable opposing counsel to take proper corrective measures to remedy the defect if possible). Every group of exceptions which is not particularly specified is to be considered as abandoned. State v. Droste, 232 N.W.2d 483, 487 (Iowa 1975).
Defendant also argues his trial counsel was ineffective if the issue was not properly preserved for review because he did not file a timely motion to suppress the confession as directed by Iowa R.Crim.P. 2.11(4). The State did not challenge the timeliness of the motion in the district court, and the district court ruled on the defendant's challenge. Even if counsel were ineffective in failing to file a timely motion to suppress, defendant cannot show he was prejudiced by the untimely filing. We find no reason to reverse on this issue.
The defendant's next claim is that requiring a mentally challenged person to serve eighty-five percent of a twenty-five year sentence is cruel and unusual punishment under the Eighth Amendment. The State advances this claim was not preserved for appellate review because it was not raised in or decided by the district court. The defendant admits he did not raise a constitutional challenge in the district court but contends the sentence may be challenged on appeal even if not raised in district court if it is an illegal or void sentence. See State v. Austin, 503 N.W.2d 604, 607 (Iowa 1993) (stating an illegal or void sentence cannot stand, even if not raised in district court). A sentence is not illegal or void even though it may be subject to a constitutional challenge. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The constitutional claim not having been raised in the district court it is not preserved for appellate review. See id.
A sentence is illegal or void if a court does not stay within the statutory bounds for a sentence or if it is "beyond the power of the court to impose. Id. In the case before us, the sentencing court followed the statutory mandates for the sentence imposed. Defendant's challenge to the sentence as illegal or void must fail.
Defendant also contends his trial counsel was ineffective in not challenging the sentence as excessive when considering the defendant's mental handicap and the acts he committed. Although ineffective assistance claims ordinarily are preserved for postconviction relief actions, we will consider them on direct appeal if the record is adequate. Id.
To prove that trial counsel failed in an essential duty, appellant must show "his attorney's performance fell outside the normal range of competency." State v. Henderson, 537 N.W.2d 763, 765 (Iowa 1995). Under Iowa Code section 902.12, the sentencing court has no discretion in sentencing for certain forcible felonies. Trial counsel does not have a duty to challenge a mandatory sentence as excessive. "Trial counsel is not incompetent in failing to pursue a meritless issue." Ceaser, 585 N.W.2d at 195.