Christopher L. McAfee v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1988
Filed October 6, 2021
CHRISTOPHER L. McAFEE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Christopher McAfee appeals the denial of his application for postconviction
relief. AFFIRMED.
G. Brian Weiler, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Greer and Badding, JJ.
2
TABOR, Presiding Judge.
At his postconviction-relief (PCR) hearing, Christopher McAfee told the
district court he first heard of the sex offender registration requirement at his
sentencing for invasion of privacy and assault. In contrast, his trial counsel testified
McAfee knew about the requirement going into his bench trial. The court believed
counsel. Deferring to that credibility finding, we affirm the denial of postconviction
relief.
I. Facts and Prior Proceedings
We adopt this statement of facts from McAfee’s direct appeal.
After a night of drinking, McAfee returned to his home with his
girlfriend, his girlfriend’s roommate—the victim, and a friend of the
victim. All were drinking, and all but the victim were using cocaine.
The victim awoke the next morning and found she was not wearing
her pants or underwear. She did not recall what happened the night
before, but about a month later, her boyfriend received photos and a
video that were taken of her that night. She was embarrassed and
humiliated, and contacted the police. McAfee admitted to taking the
video in which the victim is face down in the bed, unclothed from the
waist down, and does not move during the video. . . . The video also
shows McAfee touching the victim in a sexual manner, and the victim
did not move in reaction to the touching.
State v. McAfee, No. 13–0268, 2014 WL 1494901, at *1 (Iowa Ct. App. Apr. 16,
2014).
Based on those facts, the State charged McAfee with three counts of
invasion of privacy–nudity, serious misdemeanors, in violation of Iowa Code
section 709.21 (2011), and one count of simple-misdemeanor assault, in violation
of Iowa Code section 708.2(6). After a bench trial, the court found him guilty of
one count of invasion of privacy and the assault. The court sentenced McAfee to
one year in jail to be served concurrently with a thirty-day term. The court also
3
imposed a special sentence under Iowa Code section 903B.2 and ordered McAfee
to register as a sex offender. McAfee appealed. We affirmed his conviction and
sentence. See id. at *4.
McAfee applied for PCR in August 2014. He raised two issues resolved on
direct appeal, but added two issues that were not. In the new claims, he argued
trial counsel was ineffective in not introducing a DVD into evidence and his attorney
“misled [him] into believing if [he] was found guilty [he] wouldn’t have to register
under 692A.102[1](B)(7).”1 The district court granted the State’s motion to dismiss
McAfee’s application, finding all the issues had been decided on direct appeal. In
his first PCR appeal, we affirmed in part, reversed in part, and remanded the case
for an evidentiary hearing on the two new issues. McAfee v. State, No. 15–1289,
2016 WL 7403710, at *1 (Iowa Ct. App. Dec. 21, 2016).
At that evidentiary hearing, both McAfee and his trial counsel testified.
Counsel recalled that McAfee thought the DVD was “exonerating evidence,” but
counsel disagreed. Counsel also testified that he did “not have a specific
recollection of informing McAfee of his sexual registration requirements . . . .” But
based on “long standing practice as a public defender[,]” he was confident he did
so. To support his application, McAfee testified he wanted the DVD introduced
because “it showed our activities.” As for the registration requirement, McAfee
claimed that the prosecution offered him a deal where he would plead guilty to the
1 In his first PCR appeal, we quoted his petition as saying, “his attorney ‘misled
[him] into believing if [he] was found guilty, [he] would have to register’ as a sex
offender.” McAfee v. State, No. 15–1289, 2016 WL 7403710, at *1 (Iowa Ct. App.
Dec. 21, 2016) (alterations in original). But upon a closer reading of his
handwritten claim, and given context, we believe McAfee alleged counsel told him
he “wouldn’t have to register.”
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simple assault and the State would dismiss all three invasion-of-privacy counts.
McAfee believed under that offer, he would not have to register as a sex offender.2
McAfee also testified his attorney did not tell him that if he went to trial and lost he
would have to register as sex offender.
The PCR court found counsel’s testimony “to be very convincing” and more
credible than McAfee’s version of the advice he received. And so, the court held
that McAfee did not prove his claim of ineffective assistance of counsel and denied
relief. McAfee appeals.
II. Analysis
We review the denial of postconviction relief for errors at law. Doss v. State,
961 N.W.2d 701, 709 (Iowa 2021). We switch to de novo review “[w]hen the basis
for relief implicates a violation of a constitutional dimension.” Id. (alteration in
original) (quoting Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018)). In our de
novo review, we give weight to the district court’s findings on witness credibility.
King v. State, 797 N.W.2d 565, 571 (Iowa 2011); Cox v. State, 554 N.W.2d 712,
715 (Iowa Ct. App. 1996) (deferring to PCR court’s conclusion that trial counsel’s
version of events was more credible than applicant’s claim).
McAfee’s sole challenge is that trial counsel was ineffective for failing to
advise him that if convicted he would have to register as a sex offender.3 To
prevail, McAfee must show (1) counsel failed to perform an essential duty, and
(2) this failure caused prejudice. See Sauser v. State, 928 N.W.2d 816, 818 (Iowa
2 Neither trial counsel nor the State had a record of that plea offer.
3 McAfee abandons the PCR claim that counsel should have introduced the DVD
into evidence.
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2019) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). In
evaluating counsel’s performance, we presume competence; it is McAfee’s burden
to present facts establishing inadequate representation. See King, 797 N.W.2d at
571. To that end, McAfee did not meet his burden to show counsel gave faulty
advice on the registry requirement.
Granted, because the criminal trial occurred seven years earlier, counsel
testified his memory of the case was “quite hazy.” But when asked if McAfee knew
about the registry requirement going into the bench trial, counsel responded: “Yes
he did.” Counsel explained that when clients are charged with offenses having a
sexual component, such as invasion of privacy, they are told about the applicability
of the sex offender registry. Counsel testified he would not have advised McAfee
that if found guilty he would not have to register as a sex offender.
All in all, the PCR court found those assurances more believable than
McAfee’s assertions to the contrary. Given the frontline position of that court, we
accept those assessments of trustworthiness. See Wycoff v. State, 382 N.W.2d
462, 472 (Iowa 1986). Because McAfee could not prove a breach of duty, his
ineffective-assistance claim fails. We affirm the denial of PCR.
AFFIRMED.