Daniel R. Bothell, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0813
Filed April 22, 2015
DANIEL R. BOTHELL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,
Judge.
A postconviction relief applicant challenges his 2010 guilty plea to assault
with intent to commit sexual abuse, contending plea counsel was ineffective
incorrectly advising him as to the length of time he would be required to register
as a sex offender. AFFIRMED.
Mark C. Smith, Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Janet Lyness, County Attorney, and Susan Nehring, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.
Daniel Bothell challenges his 2010 guilty plea to assault with intent to
commit sexual abuse, contending his plea was unknowing and involuntary
because his plea counsel incorrectly advised him as to the length of time he
would be required to register as a sex offender. The district court denied
Bothell’s application for postconviction relief, concluding Bothell could not prove
his plea counsel was ineffective because the court found Bothell would not have
refused to enter the plea and gone to trial even had he been accurately informed.
On appeal, we accept the postconviction court’s findings and affirm.
I. Background Facts and Proceedings.
The minutes of testimony in the underlying criminal case indicate that on
November 9, 2009, Daniel Bothell was at a woman’s house “chilling.” The
woman’s boyfriend was also there. The three drank and played video games.
Despite the fact that the woman knew Bothell to be homosexual and lived with
his boyfriend, Bothell made numerous sexual advances to both the woman and
her boyfriend throughout the night. The woman assumed Bothell was joking, but
she told him to stop several times. Her boyfriend was also uncomfortable with
Bothell’s behavior.
At some point, the woman’s boyfriend left to get pain medication. Once he
left, Bothell attacked the woman, grabbing her and dragging her toward the back
bedroom of her house and ripping her clothes. She told him he was hurting her
and struggled to get away, but he began to hit her. After he dragged her to the
bedroom, he bit her neck, and threw her onto the bed where he pinned her and
punched her in the face. At this point he threatened to break her neck, stated he
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was going to “get some pussy,” and told her, “Bitch, you’re going to get it just like
[Bothell’s boyfriend] did.” The woman recognized the threat, as she was aware
that the Bothell had previously assaulted his boyfriend by tearing his clothes off
and beating him.
The woman kept knives throughout her house as a source of protection
and was eventually able to grab one she had in the bedroom. She stabbed
Bothell and ran naked to her neighbor’s house. In the meantime, Bothell
returned to his own home and his boyfriend called police to report the stabbing.
Police located the woman at her neighbor’s house, and pictures were taken of
her injuries, which included bruises, scratches, and bite marks. Upon arrest,
Bothell kicked and tried to trip one of the responding officers.
Bothell was charged with assault with intent to commit sex abuse causing
bodily injury, a class “D” felony, in violation of Iowa Code section 709.11 (2009);
first-degree harassment, an aggravated misdemeanor in violation of section
708.7(1)(b) and .7(2); false imprisonment, a serious misdemeanor in violation of
section 710.7; and assault on a peace officer, a serious misdemeanor in violation
of section 708.1(1) and 708.3A(4).
The parties reached a plea agreement in which Bothell would plead guilty
to the lesser included offense of assault with intent to commit sexual abuse
(without bodily injury), an aggravated misdemeanor in violation of Iowa Code
section 709.11, and the other charges would be dismissed. The minimum fine
and sentence would be suspended, and Bothell would be placed on probation for
two years and required to attend required sex offender treatment. The guilty plea
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also indicated that Bothell would be placed on the sex offender registry for ten
years.
In Bothell’s written plea of guilty, he provided a factual basis for his plea:
I admit that on November 9, 2009, I punched and hit the
victim in this case multiple times. I tore or ripped her clothes off. I
admit that it was my intent to have sex with her against her will. By
sex I mean that I wanted to have intercourse with her.
On April 30, 2010, the district court accepted Bothell’s written guilty plea
and he was sentenced in accordance with the plea agreement except as to the
sex offender registry. The court did not expressly impose a ten-year registration
requirement but instead ordered that Bothell shall register pursuant to Iowa Code
section 692A.104. The Court also entered a separate order requiring Bothell to
register in accordance with Iowa Code section 692A.101 and 692A.102, but did
not specify the time limit for registration. Bothell did not file a direct appeal of his
conviction and sentence.
In July 2010, Bothell received a letter from the Department of Criminal
Investigation informing him that he was subject to lifetime sex offender
registration. Bothell violated probation several times, including in July and
August of 2010. His plea attorney, Quint Meyerdirk, represented Bothell during
these proceedings.
On October 16, 2012, Bothell wrote a letter to the district court alleging
that at the time he pled guilty he understood that he would be required to register
for five years and requesting postconviction relief (PCR). On November 8,
Bothell filed a PCR application. Counsel was appointed and Bothell filed an
amended PCR application, alleging Bothell’s plea attorney incorrectly informed
5
him that he would be placed on the sex offender registry for ten years and that
the written plea reflected this representation. However, Bothell was required to
register for life, rendering Bothell’s plea in violation of the Sixth and Fourteenth
Amendments to the United States Constitution, as well was Article I, section 10
of the Iowa Constitution.
On January 16, 2014, a hearing was held on Bothell’s PCR application.
Bothell testified his plea counsel informed him he was facing up to twenty-five
years in prison and “that was definitely a factor in my decision for accepting the
plea.” He stated the plea agreement was that he would be required to be on the
sex offender registry for ten years and he “thought that was acceptable.” Bothell
testified further that the registry issue—the ten years on the registry as stated in
the written plea—“was my grand motivation for accepting the plea.” Bothell
testified:
Q. So the issue of being on the registry was of concern to
you in making your decision to accept the plea offer? A. I was not
interested in a lifetime on the registry.
Q. Is that a conversation that you had with Mr. Meyerdirk?
A. I believe it was. Yeah.
Q. Okay. A. Yeah.
Q. But in your mind at least, a lifetime registry was not going
to be an acceptable outcome? A. No. It wasn’t.
Q. And why is that? A. I would take it to trial rather than—
rather than just accept a lifetime sentence on a plea.
....
Q. Okay. So was it still your understanding—specifically
focusing on the registry issue—that you were going to receive ten
years on the registry as part of your guilty plea? A. Yeah.
Q. Now, at some point after being sentenced, did you
discover that the Department of Corrections did not view you as
being someone that would be on the sexual abuse registry for ten
years? A. Yes. I received a document in July of 2010 that stated
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that this charge that I had pled guilty to had changed[1] and now
carried a term of lifetime on the registry.
Bothell testified that upon receiving the letter, “I felt that a gross injustice had
been done on my behalf, and I started to resist probation and I started to resist
the terms of my probation and telling my probation officer this is not a lifetime,
this is—it’s a ten-year registry.” Bothell repeated, he would have taken the
matter to trial had he known of the lifetime registry requirement “[b]ecause I didn’t
believe I was guilty in the first place” and “a lifetime on the registry was a lot more
than I was willing to take.”
Bothell testified on cross examination that he had asked his plea counsel if
the assault with intent charge could be “removed because I did not have the
intent to sexually abuse this woman. And he kind of chuckled and said, no, that’s
the deal that they’re offering, you can take it or take it to trial.” The State’s
attorney asked Bothell why his original letter to the court mentioned a five-year
registry requirement rather than the ten-year registry requirement Bothell was
testifying he had agreed to. Bothell responded:
That was stated after the—the signing of the document. He
[Meyerdirk] stated this would be all resolved within five years and
he said, Mr. Bothell, you could have won this in a trial without my
assistance, followed by another chuckle. And there’s a witness to
that statement. [Bothell’s then boyfriend]. That conversation took
1
As of July 1, 2009, Iowa Code sections 692A.101(1)(a)(5) and 692A.106(5) required all
persons convicted of assault with intent to commit sexual abuse (without Injury), in
violation of Iowa Code Section 709.11, an aggravated misdemeanor, to register as a sex
offender for life. Prior to July 1, 2009, a conviction for this same offense triggered a ten-
year registration requirement. See Iowa Code § 692A.2(1) (2007). When the legislature
increased the applicable registration period from ten-years to life, it made that increase
effective retroactive for anyone who was otherwise required to register as a sex offender
as of June 30, 2009. See Iowa Code § 692A.125(2)(a). In State v. Pickens, 558 N.W.2d
396, 400 (Iowa 1997), our supreme court concluded that “Iowa’s sex offender
registration statute, Iowa Code chapter 692A, is not punitive and therefore is not ex post
facto.”
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place on the stairs of this courthouse. So in this—in this document
that I wrote, I wrote something to the effect of only five years. That
was after being further misled by Mr. Meyerdirk.
Bothell acknowledged that had he gone to trial and lost, he was facing a
mandatory prison sentence. He was asked about prior convictions and whether
plea counsel addressed possible “credibility problems” if he wanted to testify due
to the type of felony convictions he had in his background. Bothell stated, “He
just told me that he did not want to put me on the stand.” He also acknowledged
he was in jail before signing the plea agreement, he was “very eager” to get out
of jail, and he was released within twenty-four hours of signing the agreement.
Bothell’s plea counsel, Meyerdirk, testified he has been a public defender
since 1993. Meyerdirk testified he would not have advised Bothell he was facing
twenty-five years on the charged offenses because that was not accurate—a
class “D” felony had a maximum term of five years. He also testified Bothell, had
he gone to trial, ran a substantial risk of being found guilty of assault with intent
to commit sexual abuse causing injury, as well as the other charges. Bothell’s
postconviction counsel and Meyerdirk had the following exchange:
Q. All right. When you were typically talking to defendants in
that period of time, 2009-2010, about sex offender registry
requirements, is there anything that you were routinely advising
people about in regard to the unique retroactive features of sex
offender registry requirements? A. I did not recall specifically sitting
down with Mr. Bothell or saying to him over the phone this is bad,
this is what’s going to happen, but I do it with every client. Any
client that’s got a sex offense pending or one that they’re pleading
to or so forth, I try to warn every one of them, don’t believe—don’t
believe—don’t believe anyone. There’s no one that’s going to run
to your aid on this registry information. You’re going to be on this
thing for life. No Congressman, Congresswoman. No one is going
to stick their necks out to help people that have been convicted of a
sex crime. They’re just not. . . .
....
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Q. And do you believe—Do you believe that you would have
advised Mr. Bothell that he would have been subject to a lifetime
sex offender registry? A. Yes.
Q. Based on the nature of this offense? A. Yes. . . . And my
answer was yes, but I don’t think it’s based on the nature of this
offense. I think any sex crime, I think they’re going to be on the
registry for life. I just think that’s the direction it’s been going.
....
Q. Do you feel that—that Mr.—or that you ever made any
assertions to Mr. Bothell telling him that this sex offender registry
thing is going to go away in five years because it’s going to be too
overloaded? A. With the registry?
Q. Yes. A. No.
Q . Do you think you would have ever told Mr. Bothell or any
client charged with a sex offense that he could expect that the sex
offender registry requirements would just go away in five years? A.
No.
Q. Does that—That doesn’t sound like anything that you
would have said? A. No. I wish they would, but no.
Meyerdirk testified, “I told him plan on being on it for life.” He also testified he
had represented Bothell since 1998 and was aware of his criminal history, which
included impeachable felony offenses. He explained there were “problems” had
they gone to trial, the “major problems was that most of what [the victim] said
was corroborated with something physical.” Meyerkirk testified further that the
written guilty plea in this case was not the usual form, but rather, he had typed
some of the paragraphs himself in “an attempt to protect [him]self”:
Mr. Bothell wanted out of jail. Mr. Bothell did not want me to take
any more time, he did not want me to do anything. I probably
overuse things like depositions. Mr. Bothell wanted out of jail. I
was concerned, I guess, at the courthouse here when I was—the
offer was—I knew what the State wanted. Instead of filling out the
form, I wanted to make sure that we were—that he truly did not
want to do depos, he truly wanted the case over.
When asked why the written plea agreement referred to a ten-year registry
requirement, Meyerkirk testified:
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It was my belief that [the prosecutor] was incorrect on the
length of time. . . .
Q. So you testified that you were hoping the judge would
order ten years’ registry, correct? A. Follow the plea agreement.
Yes.
....
Q. So your testimony is you thought Mr. Bothell would get
lifetime registry, but you signed a document, you allowed him to
sign a document that said he would get ten years’ registry? That is
your testimony, isn’t it? A. I expressed to him that I thought it was
lifetime. I told him that no matter what the judge does, that’s—no
matter what the judge does in this case, this—this can come back
and haunt you and new law changes can come back and haunt
you.
On May 2, 2014, the district court issued its ruling, denying Bothell’s PCR
application. The court concluded that Bothell’s attorney misinformed him of the
length of the registration requirement and breached an essential duty. However,
the court concluded that Bothell was not prejudiced by the breach because the
court believed Bothell would still have taken the plea even if he had been
correctly informed. Bothell appeals.
II. Scope and Standard of Review.
Postconviction relief proceedings are civil actions reviewable for correction
of errors at law. Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009). To the
extent Garcia raises constitutional questions, our review is de novo. See
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). We review constitutional
issues de novo.
III. Discussion.
“[A]ll postconviction relief applicants who seek relief as a consequence of
ineffective assistance of counsel must establish counsel breached a duty and
prejudice resulted.” Castro v. State, 795 N.W.2d 789, 794 (Iowa 2011); see also
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Strickland v. Washington, 466 U.S. 668, 687 (1984). “‘We may affirm the district
court’s rejection of an ineffective-assistance-of-counsel claim if either element is
lacking.’” Lamasters, 821 N.W.2d at 866 (citation omitted).
Here, the postconviction court found Bothell had failed to prove prejudice.
The court made specific findings that Attorney Meyerdirk’s testimony was
credible, but Bothell’s was not. The court wrote:
The basis of his application and the focus of Applicant’s
testimony at trial in the instant matter is that the 10-year registration
requirement was a major, if not the primary, factor in his decision to
accept the State’s plea offer and plead guilty to the aggravated
misdemeanor of Assault with Intent to Commit Sexual Abuse
without injury. Applicant testified he did not know a lifetime
registration requirement was possible, even if applied retroactively,
and that he would not have pled guilty but would have gone to trial
if he had known he would be required to register as a sex offender
for life by pleading guilty. The Court does not find Applicant’s
testimony to be credible. Although Applicant was incorrectly
informed in the written guilty plea of the 10-year registration
requirement, the Court finds, at a minimum, Applicant was advised
by Attorney Meyerdirk of the possibility the registration laws would
change and he could end up being required to register for life. This
would have actually been the case had Applicant’s guilty plea been
entered and accepted prior to July 1, 2009. See Iowa Code section
692A.125. Therefore, Applicant was aware that a change in the
law could change his registration requirements after his plea was
accepted and he was sentenced. What Applicant was not made
aware of is that such a change in the law had already taken place.
Furthermore, the record and evidence supports the
conclusion that the primary, if not singular, motivator for Applicant
in taking the State’s plea deal was the fact that he would avoid a
mandatory prison term if convicted of the charged Class D forcible
felony, be given probation on the aggravated misdemeanor
conviction, and be immediately released from custody. This
conclusion is supported by at least two significant facts. First,
Applicant was released from jail without bond within a day of
signing the written guilty plea after having served over two months
in custody. Attorney Meyerdirk testified this condition was part of
the arrangement with the State and was Applicant’s primary
concern at the time. Second, shortly after Applicant received the
July 26, 2010, letter from the Iowa Department of Criminal
Investigation advising him of the requirement he register as a sex
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offender for life, Applicant was back in court on an alleged
probation violation in this very same matter, represented by the
very same attorney. However, Applicant did not raise the
registration issue with his attorney or the Court at that time or at
any other time prior to being discharged from probation on July 2,
2012.
We agree with the postconviction court’s conclusion that Bothell has failed
to prove he would have insisted on going to trial. We therefore affirm the denial
of postconviction relief.
AFFIRMED.