Opinion
No. 2-180 / 01-0421
Filed July 19, 2002.
Appeal from the Iowa District Court for Polk County, DONNA L. PAULSEN, Judge.
Defendant appeals from the judgment and sentence entered following his guilty pleas to willful injury and robbery in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and James Ward and Daniel Voogt, Assistant County Attorneys, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Shannon Young appeals from the judgment and sentence entered following his guilty pleas to willful injury and robbery in the second degree. He claims on appeal his counsel was ineffective for failing to raise constitutional challenges to the court's imposition of victim restitution pursuant to Iowa Code section 910.3B(1) (1999). We affirm.
I. PROCEDURAL HISTORY
On May 12, 2000 Shannon Young was charged by trial information with murder in the first degree and robbery in the first degree. The case was tried to a jury and after several days of deliberation the jury informed the trial court it was unable to reach a unanimous verdict. Young moved for mistrial and the State did not object. The court granted the motion for mistrial and discharged the jury. Young was not retried by the State but instead an agreement was reached wherein Young agreed to plead guilty to the decreased charges of willful injury, in violation of Iowa Code section 708.4 (1999), and robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3.
Both of these offenses are class "C" felonies while first-degree murder is a class "A" felony and first-degree robbery is a class "B" felony.
An amended trial information was filed February 13, 2001 to reflect the change in the charges and Young pled guilty to the amended charges the same day. The district court sentenced Young to an indeterminate ten-year term of incarceration on each count and ordered the sentences to run consecutively. The court also ordered Young to pay restitution of $150,000 to the estate of the victim pursuant to section 910.3B(1).
Young appeals from this judgment and sentence contending his counsel was ineffective for failing to raise due process and supremacy clause challenges to section 910.3B(1). Both parties agree error was not preserved but that ineffective assistance of counsel claims are an exception to general error preservation rules. See State v. Hochmuth, 585 N.W.2d 234, 237 (Iowa 1998); Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). While we often preserve ineffective assistance of counsel claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither Young nor the State suggests the record is insufficient. We find the record adequate to address Young's claims.
II. SCOPE OF REVIEW
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). When there is an alleged denial of constitutional rights, such as effective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998).
III. MERITS
To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996). To sustain his burden of proof on the first prong, a defendant must overcome the strong presumption counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999).
A. Due Process
Young contends Iowa Code section 910.3B(1) is violative of due process of law both facially and as applied. He asserts the statute violates both procedural and substantive due process and claims his trial counsel was ineffective by not raising those issues in the district court.
Defendants convicted of a felony resulting in the death of another person are to be ordered "to pay at least one hundred fifty thousand dollars in restitution to the victim's estate" Iowa Code § 910.3B(1). Such an award serves not only a remedial purpose, "but also serves other purposes normally associated with punishment such as retribution and deterrence," and is therefore a "fine" within the United States and Iowa Constitutions. State v. Izzolena, 609 N.W.2d 541, 549 (Iowa 2000).
In Izzolena our supreme court rejected the contention that section 910.3B violated procedural due process because it provides no opportunity for a hearing on the amount prior to the imposition of the restitution order. Izzolena, 609 N.W.2d at 553. Young presents a slightly different procedural due process claim. He contends section 910.3B(1) violates procedural due process because it deprives the sentencing court of discretion concerning the amount of the award and thus judicial review of the reward is "effectively nullified." We disagree. "Our legislature is free to recognize the seriousness of certain crimes and impose greater punishment, or as under this statute, supplement criminal punishment for serious crimes by imposing mandatory restitution." Id. at 550. We find no merit to Young's claim that section 910.3B(1) is facially violative of his rights to procedural due process of law.
Young does not suggest how his "as applied" challenge differs form his "facial" challenge to the statute. We are unable to discern any meaningful distinction between the two in this case. We therefore reject his "as applied" procedural due process challenge for the same reasons.
Young also asserts section 910.3B(1) is substantively flawed in that "it picks a compensatory/punitive award figure that is divorced from any showing of actual and case specific damages." We view this challenge as claiming only facial unconstitutionality, as his argument relates to the statute in all applications rather than as applied to any particular facts of this case.
Our supreme court has addressed and rejected an essentially identical claim, concluding that "section 910.3B is a `reasonable fit' between the . . . government interests and the means through which the legislature has chosen to accomplish them." State v. Klawonn, 609 N.W.2d 515, 520 (Iowa 2000). We reject Young's substantive due process challenge to the statute, finding Klawonn dispositive.
Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); Hochmuth, 585 N.W.2d at 238. Because both of Young's due process challenges lack merit, Young's counsel had no duty to raise them and was not ineffective for not doing so.
B. Supremacy Clause
Young next contends the portion of section 910.3B which provides that the $150,000 restitution "shall not be dischargeable in any proceeding under the federal Bankruptcy Act" violates the Supremacy Clause of the United States Constitution and his counsel was ineffective for failing to challenge the statute on this ground.
Initially, we note there is a serious question concerning whether Young's claim is adjudicable or fully ripe for determination at this time. In order for a claim to be justiciable "there must be specific adverse claims, based on present rather than future or speculative facts, which are ripe for judicial adjustment." Grains of Iowa L.C. v. Iowa Dep't of Agric. and Land Stewardship, 562 N.W.2d 441, 445 (Iowa Ct.App. 1997); see also State v. Backes, 601 N.W.2d 374, 375 (Iowa Ct.App. 1999).
[C]ourts frequently decline to pass upon remote, future, or contingent rights which may never arise, at least where there is no present need for such determination or, because of absence of parties or otherwise, the determination may not be final.
Grains of Iowa, 562 N.W.2d at 445 (quoting Katz Inv. Co. v. Lynch, 242 Iowa 640, 47 N.W.2d 800, 805 (1951)). Young does not claim he has filed bankruptcy or that he is going to do so. Therefore, we are arguably being asked to determine an abstract question which does not rest upon existing facts or rights. "In many respects it is `advisory,' for the judgment sought would not constitute specific relief to a litigant or effect [sic] legal relations." Id. at 446. It has repeatedly been held that we neither have a duty nor the authority to render advisory opinions. Hartford-Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997). Assuming, without deciding, that the Supremacy Clause issue is justiciable and that we have the authority to render on opinion on the issue, we address the merits of Young's claim.
Under the Supremacy Clause state statutes which interfere with, or are contrary to, federal law are invalid. Hawkeye Bank Trust N.A., of Centerville-Seymour v. Milburn, 437 N.W.2d 919, 922 (Iowa 1989).
Where Congress has chosen to exercise its authority, contrary provisions of state law must accordingly give way. It is equally well settled, however, that state laws are suspended only to the extent of actual conflict with the bankruptcy system provided by Congress, so that in the absence of any conflict between the state and bankruptcy laws, the law of the state . . . governs.Id. (quoting Johnson v. First Nat'l Bank, 719 F.2d 270, 273 (8th Cir. 1983)). See also In re Guardianship and Conservatorship of Cavin, 333 N.W.2d 840, 841 (Iowa 1983) (finding state regulations were not invalid under Supremacy Clause because they did not contravene or conflict with federal law).
Under section 1328(a)(3) of the federal Bankruptcy Code any debt for restitution included in a sentence on the debtor's conviction of a crime is excepted from discharge in a Chapter 13 bankruptcy. 11 U.S.C. § 1328(a)(3) (1998); In re Wilson, 252 B.R. 739, 740-41 (B.A.P. 8th Cir. 2000). "Accordingly, it is clear from this Congressional action and from the legislative history that accompanied the amendment to section 1328(a) that Congress did not intend bankruptcy courts to be able to discharge state criminal court restitution orders in either Chapter 7 or 13 cases." In re Hardenberg, 42 F.3d 986, 992 (6th Cir. 1994).
Subsection (a)(3) of section 1328 was added by Congress in 1990 and only applies to cases commenced after November 15, 1990.
Therefore, we are not persuaded that state criminal victim restitution is dischargeable in a bankruptcy proceeding. Section 910.3B does not appear to be in meaningful conflict with federal bankruptcy law. Accordingly, Young's counsel had no duty to challenge section 910.3B(1) on Supremacy Clause grounds, as such a claim appears meritless. Smothers, 590 N.W.2d at 724; Greene, 592 N.W.2d at 29.
We conclude Iowa Code section 910.3B does not violate either constitutional notions of due process or the Supremacy Clause of the United States Constitution. Therefore, Young's counsel had no duty to raise these constitutional challenges to the court's imposition of victim restitution pursuant to section 910.3B(1). Young was not denied his Sixth Amendment right to effective assistance of counsel. We have considered all issues presented and conclude the judgment and sentence of the district court should be affirmed.
AFFIRMED.