Kenneth Lee Doss v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 19-1285
Submitted January 20, 2021—Filed June 25, 2021
Amended September 8, 2021
KENNETH DOSS,
Appellant,
VS.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, Richard B.
Clogg, Judge.
Applicant for postconviction relief seeks further review of the court
of appeals’ affirmance of the denial of his application for postconviction
relief. DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman and McDermott, JJ., joined in full and
McDonald and Oxley, JJ., joined in part. Appel, J., filed a special
concurrence. McDonald, J. filed a special concurrence, in which Oxley,
J., joined.
2
Raya D. Dimitrova (argued) of Carr Law Firm, P.L.C., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke (argued),
Assistant Attorney General, for appellee.
Matthew T. Lindholm, West Des Moines, and Mary K. Spellman,
West Des Moines, for amicus curie Iowa Association for Justice.
Rita Bettis Austin of ACLU of Iowa, Des Moines, for amicus curie
American Civil Liberties Union of Iowa.
Thomas J. Miller, Attorney General, and John R. Lundquist,
Assistant Attorney General, for amicus curie Iowa Board of Parole.
MANSFIELD, Justice.
This case involves a convicted sex offender’s challenge to two aspects
of his lifetime special parole sentence. First, the offender maintains that
the terms and conditions of that parole should have been disclosed to him
back in 2007, when he pled guilty. Second, the offender maintains that
certain sex-offender-treatment-program (SOTP) parole restrictions as to
internet use, dating, contact with minors, church attendance, and
independent counseling violate his constitutional rights to free speech and
freedom of association. The district court rejected both challenges, and so
did the court of appeals.
On further review, we also reject these challenges. We conclude that
the terms of a parole agreement are collateral consequences that need
not—and, as a practical matter, probably could not—be disclosed at the
time of the initial guilty plea. Additionally, we conclude that the offender
has not shown the SOTP restrictions were unconstitutional as applied to
him, i.e., that they resulted in an unlawful parole revocation. See lowa
Code § 822.2(1)(e) (2017). Accordingly, we affirm the judgment of the
district court and the decision of the court of appeals.
I. Background Facts and Proceedings.
In 2007, Doss was charged by amended trial information with one
count each of sexual abuse in the third degree, a class “C” felony;
lascivious acts with a child, a class “C” felony; and indecent contact with
a child, an aggravated misdemeanor. Pursuant to a plea agreement, on
February 15, 2007, Doss pled guilty to one of the class “C” felonies—
lascivious acts with a child. See Iowa Code § 709.8 (2005). As part of the
agreement, the State dismissed a misdemeanor assault charge in another
case and allowed Doss to argue for a suspended sentence. The State
4
reserved the right to argue for the sentence recommended in the
presentence investigation report.
In pleading guilty, Doss admitted to the district court that he did the
following to a child on or about September 6, 2005:
I spent the night at my cousin’s house. I got up in the middle
of the night and went into my second cousin’s bedroom, got
underneath the covers, and I touched her pubes and |
realized—I was in there about five minutes, realized what I
was doing was wrong, and went downstairs.
As part of the district court’s plea colloquy, the district court asked Doss
if he understood he would be “on probation for life” due to the nature of
his offense. Doss confirmed he understood this.
On April 11, 2007, Doss’s sentencing took place. The district court
sentenced Doss to an indeterminate term of incarceration not to exceed
ten years but suspended the sentence and placed Doss on probation,
imposed a fine, and imposed the special sentence of lifetime parole under
Iowa Code section 903B.1 to begin at the completion of Doss’s probation.
Doss was also ordered to undergo SOTP, and a no-contact order was put
in place between Doss and the victim.
Approximately three months later, on July 23, Doss was found in
contempt for having violated the terms of his probation and was sentenced
to seven days in jail and ordered to undergo a psychological evaluation.
Some five months after that, based on a further violation, the district court
revoked Doss’s probation and sent him to prison.
Doss was paroled in 2015 after having served about seven years and
nine months in prison. He had been required to but did not complete
SOTP while in prison. On August 14, 2015, Doss signed a parole
agreement. Therein, Doss agreed to obey all laws, not to use drugs or
alcohol, to obey any curfew restrictions, not to leave the county without
5
permission, to complete SOTP, not to associate with persons with a
criminal record, not to have to contact with minors, and not to “use the
internet or other forms of electronic social media for anything other than
job searches” unless he received approval.
In March 2016, Doss went through a parole revocation hearing, but
his parole was continued. In June, he again had a revocation hearing.
This time he was “revoked to work release” with a two-year sentence
imposed. See Iowa Code § 903B.1 (two-year sentence for first revocation).
On October 28, Doss was discharged on parole from the work-
release facility where he had been staying. He signed another parole
agreement. Once again, the agreement provided that Doss would obey all
laws, not use drugs or alcohol, obey any curfew restrictions, complete
SOTP, and not associate with persons with a criminal record. The
restriction on contact with minors was reworded; it merely prohibited
contact with minors “unless approved.” And there was no restriction on
internet use in the 2016 parole agreement itself.
Three days later, on October 31, Doss was presented with and
signed an SOTP rules and conditions contract. Doss agreed he would
“attend SOTP group sessions as scheduled”; “not participate in any form
“
of outside counseling”; “not attend church or religious gatherings”; “not
establish, pursue or maintain any dating, romantic and/or sexual
relationship(s)”; “not purchase, possess or view sexually explicit
materials”; “not view, access or use the Internet”; “not view or possess
images/photos/videos of my victim(s) or minors”; and “not have direct or
indirect contact with any minors.” Doss agreed to abide by these
conditions “unless [he] obtain[ed] documented approval for any changes,
additions, or amendments by [his parole officer], Board of Parole (when
required) and SOTP team.”
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Within a month, Doss was facing another parole revocation for
violations that had occurred in November. Doss’s parole violations
included missing SOTP group therapy, viewing pornographic and
dating/hookup websites, being around individuals with criminal records
without approval, dating, allowing a female to stay in his home, and
possessing a photograph of himself holding a minor that was taken while
he was not approved to have contact with minors. Doss admitted to being
in a sexual relationship with a woman with a criminal record; the two of
them were staying at a hotel. Doss also appeared to be trying to start a
relationship with a younger individual through a “risqué dating site.”
Following the revocation of his parole, Doss returned to prison. See
Iowa Code § 903B.1 (five-year sentence for second revocation). From the
Newton Correction Facility, Doss filed the present postconviction relief
application on March 21, 2017. In the application, Doss claimed his plea
counsel was ineffective in failing to “adequately inform [him] of the extent
of the rules and requirements of the special sentence at the time of his
plea.” Doss also challenged certain requirements of his special sentence
as violating the First Amendment and article I, section 7 of the lowa
Constitution.
On May 24, 2019, the district court held a bench trial on Doss’s
application. Joseph Swaim, Doss’s parole officer during 2016, testified
about Doss’s special sentence, his parole agreement, and his SOTP
agreement. He explained the SOTP rules go in place for everyone, such as
Doss, who is required to undergo SOTP treatment on leaving prison. He
characterized the rules as “negotiable,” as they are “[t]ypically . . . intact
for a time period until evaluations and assessments and decisions have
been made by the psychologist for further programming or not further
programming and some type of staffing can be done regarding the
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individual.” Swaim agreed that for any violation of an SOTP rule, a parolee
potentially could—but not necessarily would—be sent back to prison. He
confirmed that the SOTP agreement allows for the written rules to be
amended:
Q. Fair to say that having a girlfriend is not against the
law unless you’re on this treatment plan? A. It’s still not
against the law in the treatment plan. It still can be amended
if you read the statement of understanding on the back page
of Exhibit 2. It says, “I confirm that I understand all rules and
conditions outlined in this document. I agree to abide by all
conditions as stated throughout the duration of my
supervision unless I obtain documented approval for any
changes, additions or amendments by my PO, Board of Parole
and SOTP team.” So it’s not a hard and fast [rule]. These are
the rules for the duration. They have the ability to get those
amended and changed.
Swaim noted Doss’s treatment plan could be amended. However, Doss
never obtained permission to amend his plan, nor was there evidence that
he ever sought to amend it.
Swaim further explained that the purpose of SOTP is first to evaluate
and then to rehabilitate the sex offender:
Q. So there was no individualized determination as to
each particular rule as it applies to any particular individual.
It’s just everybody? A. There is because that’s what the
evaluation period is for. When we spend time evaluating them
and having them meet with psychologists, that is to determine
what rules are appropriate for this individual. That cannot be
done initially because we don’t have an understanding of who
the person is even if they’ve been in our program before.
Things change over time periods. So, yes, we do have that
evaluation period before we come up with amendments and
changes to a more specified, specific plan for that individual.
Doss’s plea counsel from 2007 also testified. He had no independent
recollection of Doss or of representing him. He could not remember his
standard practice for advising people regarding the special sentence,
although he doubted he would have provided any advice on the rules that
would be in effect during the special sentence.
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Doss himself was the third and final witness. He testified that his
plea counsel told him the rules of the special sentence were “used as a
monitoring thing” and “[a]s long as I followed the actual law, I would be
okay.” Doss stated he never had any conversations with plea counsel
about specific rules provisions, so he was unaware that he would have to
abide by rules that went beyond existing laws. He testified he would not
have pled guilty had he known of certain rules, such as being unable to
have a girlfriend or leave the county without permission. Others he
acknowledged were not that big a deal. Doss also testified he would not
have pled guilty if he had known he would have to undergo SOTP upon
being paroled from prison.! Doss added that “you can’t start your life over
with those rules. It doesn’t make it possible in any way, shape or form.”
Doss conceded that he had violated the SOTP rules—as noted,
within a month of being paroled—and had ended up back in prison on his
second parole revocation. When asked what he did to end up back in
prison, Doss replied, “I had a girlfriend and Internet.” Doss acknowledged
that at the time of revocation he was still going through SOTP.
The district court denied Doss’s application on the merits. It
concluded Doss’s plea counsel did not have to inform Doss of the rules of
his special sentence, as opposed to the existence of the special sentence
itself, because these rules’ constituted indirect and _ collateral
consequences. Also, even assuming Doss’s counsel breached an essential
duty by failing to inform him Doss of the rules, the court determined Doss
could not show a reasonable probability that he would have insisted on
going to trial. As the court noted, the plea agreement resulted in the
dismissal of other charges, and Doss received assurance the State would
1As noted, Doss acknowledged he started but did not complete SOTP in prison.
9
not seek prison if the presentence investigation recommended probation.
Finally, the district court rejected Doss’s constitutional challenges to the
special sentence parole and SOTP rules, noting Doss “cite[d] no persuasive
authority” to support his challenges.
Doss appealed. We transferred the case to the court of appeals,
which affirmed the district court judgment. Doss applied for further
review, and we granted his application.
II. Standard of Review.
We generally review a district court’s denial of an application for
postconviction relief for errors at law. Moon v. State, 911 N.W.2d 137, 142
(lowa 2018). Our review is de novo “[w]hen the basis for relief implicates
a violation of a constitutional dimension.” Id.III. Analysis.
A. Ineffective Assistance of Plea Counsel Claim. Doss argues his
plea counsel was ineffective because counsel did not adequately inform
Doss of the extent of the special sentence’s rules and requirements at the
time of Doss’s 2007 plea. To establish ineffective assistance of counsel,
Doss must demonstrate his plea counsel “failed to perform an essential
duty” that resulted in prejudice. State v. Straw, 709 N.W.2d 128, 133
(lowa 2006), superseded in part by statute on other grounds, 2019 Iowa
Acts ch. 140, §§ 28, 31 (codified at lowa Code §§ 814.6(1)(a), .7 (2020)), as
recognized in State v. Tucker, 959 N.W.2d 140, 153-54 (Iowa 2021).
“Counsel breaches an essential duty when counsel makes such serious
errors that counsel is not functioning as the advocate the Sixth
Amendment guarantees.” State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014).
“ITlo satisfy the prejudice requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he or she
would not have pleaded guilty and would have insisted on going to trial.”
10
Straw, 709 N.W.2d at 138. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” State v. Ondayog, 722
N.W.2d 778, 784 (lowa 2006) (quoting Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068 (1984)).
1. Was there a duty to advise Doss of specific special sentence
conditions at the time of the guilty pleaP lowa Rule of Criminal Procedure
2.8(2)(b\(2) requires the sentencing court to ensure a defendant
understands “[t]he mandatory minimum punishment, if any, and the
maximum possible punishment provided by the statute defining the
offense to which the plea is offered.” This includes a determination that
“the defendant understands the direct consequences of the plea,” but “the
court is not required to inform the defendant of all indirect and collateral
consequences of a guilty plea.” State v. Carney, 584 N.W.2d 907, 908
(lowa 1998) (en banc) (per curiam). The distinction between direct and
collateral consequences is “whether the result [of the consequence]
represents a definite, immediate and largely automatic effect on the range
of defendant’s punishment.” Jd. (quoting State v. Warner, 229 N.W.2d 776,
782 (lowa 1975) (en banc), overruled on other grounds by State v. Morrison,
323 N.W.2d 254, 256 (lowa 1982)).
Thus, in Carney, we held that driver’s license revocation for an
operating-while-intoxicated conviction was not a direct consequence of the
guilty plea because it was nonpunitive. Jd. at 908-09. Its purpose, rather,
was to “to protect the public by providing that drivers who have
demonstrated a pattern of driving while intoxicated be removed from the
highways.” Id. at 909 (quoting State v. Moore, 569 N.W.2d 130, 132 (lowa
1997)). On the other hand, in State v. Fisher, we held that driver’s license
revocation for a person convicted of a drug possession offense was
“mandatory, immediate, and part of the punishment for that offense.” 877
11
N.W.2d 676, 684 (Iowa 2016) (emphasis added). Accordingly, we
determined that “the court must inform the defendant of this consequence
before accepting his or her plea.” Id.2
Doss’s special sentence of lifetime parole is part of his criminal
sentence and could subject him to additional imprisonment; therefore, he
had the right to be informed of it before his guilty plea. See lowa R. Crim.
P. 11(2)(b)(2) (requiring that the defendant be informed of the mandatory
minimum punishment and the maximum possible punishment); State v.
Hallock, 765 N.W.2d 598, 605-06 (Iowa Ct. App. 2009) (holding
defendant’s special sentence under chapter 903B “is not merely collateral”
and defendant “should have been informed of the provision before the
court took his plea”). Doss acknowledges he received this disclosure, but
he contends the district court had an added obligation to inform him of
the parole rules he would have to follow when he began his special
sentence because they were also a direct consequence of his guilty plea.
Thus, Doss maintains that he entered his guilty plea unknowingly and
involuntarily and that his plea counsel was ineffective for failing to ensure
he was informed of the rules of his special sentence before he entered his
plea.
We disagree. The district court has the initial authority and the
obligation to impose Doss’s special sentence under Iowa Code section
903B, but the same is not true of the underlying rules and conditions of
Doss’s parole supervision. See id. at 605. These are determined by the
2In Fisher, our court unanimously recognized and applied the distinction between
direct and collateral consequences of a guilty plea. See 877 N.W.2d at 683 (“We must
determine whether this mandatory license suspension is a direct or a collateral
consequence of a guilty plea for possession of a controlled substance.”). Furthermore,
Doss does not challenge the direct-collateral distinction on appeal. Rather, he states,
“[T]his Court should find that the rules of Applicant’s special sentence were a direct
consequence of entering his plea and trial counsel and the Court failed to advise him of
the rules.”
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board of parole (BOP), the department of corrections (DOC), and the
district department of correctional services (DDCS). See lowa Code
§§ 903B.1, 906.1(1)(a), .3, .5(4).. The BOP establishes and approves the
standard conditions, and any special conditions “shall only be imposed in
accordance with the needs of the case as determined by the judicial district
department of corrections, the department of corrections or the Iowa board
of parole.” Iowa Admin. Code r. 201—45.2(2); see also Hill v. Lockhart, 731
F.2d 568, 570 (8th Cir. 1984), affd by an equally divided court en
banc, 764 F.2d 1279 (8th Cir. 1984), aff'd, 474 U.S. 52, 106 S. Ct. 366(1985) (“The details of parole eligibility are considered collateral rather
than direct consequences of a plea, of which a defendant need not be
informed before pleading guilty”).
Other courts have declined to treat parole rules and conditions as a
required part of the guilty plea colloquy. In People v. Monk, the New York
Court of Appeals held that the consequences of violating postrelease
supervision were collateral consequences that did not have to be disclosed
at the time of the plea. 989 N.E.2d 1, 4 (N.Y. 2013). That court explained
in part,
First, the consequences of violating postrelease
supervision are uncertain at the time of the plea, depending,
as they do, upon how a defendant acts in relation to a
condition tailored to his circumstances and imposed in the
future. Thus, such consequences are properly described as
“peculiar” to the individual. Second, the New York State
Board of Parole—not the courts—is responsible for
establishing the conditions of a defendant’s postrelease
supervision.
Id.In Denson v. United States, the District of Columbia Court of Appeals
considered a sex offender’s argument that his trial counsel had been
ineffective for failing to disclose the offender would be prohibited from
13
associating with minors as a condition of his supervised release. 918 A.2d
1193, 1194-95 (D.C. 2006). The court rejected the argument, reasoning:
Under District of Columbia law, discretionary
conditions of supervised release, such as the one at issue, are
imposed not by the trial court, but by an independent
administrative agency, the U.S. Parole Commission, which
has statutory discretion to impose “any condition ... it
considers to be appropriate.” Therefore, while the imposition
of a condition prohibiting contact with minors may, as
appellant alleges, be a “predictable” part of supervised release
for an offender convicted of child sexual abuse, it is not
“absolutely part and parcel to the sentence itself,” nor does it
“have a definite and immediate impact on the range of
defendant’s punishment.”
Id. at 1195 (citations and footnote omitted).
The Nevada Supreme Court has held that the fact of lifetime
supervision is a direct consequence of conviction that must be disclosed.
Palmer v. State, 59 P.3d 1192, 1196-97 (Nev. 2002) (per curiam). But that
court has also held that parole conditions prohibiting certain sex offenders
from using the internet without approval or being within 500 feet of a
public park without approval are collateral consequences and need not be
disclosed. Quilici v. State, No. 57275, 2011 WL 2750975, at *1 (Nev. July
14, 2011); see also Morales v. State, 104 S.W.3d 432, 436-37 (Mo. Ct. App.
2003) (holding the possibility of civil commitment if a defendant was
deemed a sexually violent predator was collateral and thus did not need to
be disclosed prior to defendant’s guilty plea because various procedures,
including a probable cause hearing and trial, had to occur before the
defendant could face civil commitment); State ex rel. Sweeney v. Farey, No.
2005AP1443, 2006 WL 1169639, at *1 (Wis. Ct. App. May 4, 2006)
(“[B]ecause the decision to place Sweeney on electronic monitoring was
made by an administrative agency rather than the court, it constituted a
collateral rather than a direct consequence of his plea.”).
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Not only did the district court lack the authority to impose any
conditions on Doss’s supervision, but it also could not definitively know
what those conditions would be at the time of Doss’s plea. A district court
need not advise defendants of “[c]onditions—general, special, or
otherwise—which are presently inapplicable because they depend solely
on the occurrence of future contingencies” prior to their guilty plea. State
v. Henderson, 797 P.2d 725, 726 (Ariz. Ct. App. 1990) (holding the district
court was not required to inform defendant prior to his guilty plea that his
earliest date of parole eligibility could be extended if he violated
correctional institution rules because that possibility was dependent upon
“contingencies which had yet to occur” and was not a circumstance that
existed at the time of the plea); see also Craig v. People, 986 P.2d 951, 963
n.9 (Colo. 1999) (en banc) (“Although the mandatory parole requirement is
itself a direct consequence of the guilty plea, the potential for
transformation of the mandatory period into [an additional period of
imprisonment] is not an immediate and automatic result of pleading guilty.
Rather, such an outcome requires an affirmative action on the part of the
offender—i.e., a parole violation—and is therefore a collateral consequence
of the plea which need not be described at the providency hearing.”). As
the United States Supreme Court has explained,
[W]here parole is concerned],| discretion, by its very definition,
is subject to changes in the manner in which it is informed
and then exercised. The idea of discretion is that it has the
capacity, and the obligation, to change and adapt based on
experience. New insights into the accuracy of predictions
about the offense and the risk of recidivism consequent upon
the offender’s release, along with a complex of other factors,
will inform parole decisions.
Garner v. Jones, 529 U.S. 244, 253, 120 S. Ct. 1362, 1369 (2000).
Doss’s parole officer testified that his conditions were subject to
change, and the rules of SOTP were typically only “intact for a time period
15
until evaluations and assessments” allowed a psychologist to decide
whether the participant needed further programming or not. In signing
his SOTP agreement, Doss specifically agreed “to abide by all conditions
as stated in this contract throughout my duration of my supervision
unless I obtain documented approval for any changes, additions or
amendments by my [parole officer], Board of Parole (when required) and
SOTP team.” The other conditions of Doss’s parole were also dependent
upon decisions made by the BOP, the DOC, and the DDCS. See lowa
Admin. Code r. 201—45.2(2) (authorizing additions to and deletions from
the standard conditions). Thus, the district court could not have known
the conditions of Doss’s lifetime parole because they were tailored to Doss’s
needs and subject to change. See State v. Graham, 897 N.W.2d 476, 490-
91 (lowa 2017) (rejecting a challenge to a lifetime special sentence as cruel
and unusual without an actual copy of the parole agreement).
Given that they were deferred, variable, and under the control of a
third party, the conditions of Doss’s parole do not fall within the sort of
“definite, immediate and largely automatic effect on the range of
defendant’s punishment” that we classify as a direct consequence of a
plea. Carney, 584 N.W.2d at 908 (quoting Warner, 229 N.W.2d at 782).
Hence, Doss’s guilty plea was knowing and voluntary, and any alleged
failure of Doss’s plea counsel to inform him of these collateral
consequences does not constitute a breach of an essential duty. Carney,
984 N.W.2d at 910 (“The failure to advise a defendant concerning a
collateral consequence, even serious ones, cannot provide a basis for a
claim of ineffective assistance of counsel.”).
3Additionally, SOTP only became a condition of parole for Doss because he did not
successfully complete it in prison.
16
Finally, it should be noted that Doss’s special parole agreements of
August 15, 2015, and October 28, 2016, were three single-spaced pages
long apiece—and they differed from each other in certain respects. Doss’s
October 31, 2016 SOTP agreement took up two single-spaced pages.
Requiring disclosure of these terms and conditions at the 2007 plea
hearing would have required considerable soothsaying and speedreading
skills. Even with direct, punitive consequences, we require disclosure only
of the maximum and minimum punishments, not all possible
permutations. See Iowa R. Crim. P. 2.8(2)(b)(2); State v. Weitzel, 905
N.W.2d 397, 408 (lowa 2017).
2. Did Doss’s plea counsel give Doss incorrect information about the
special sentenceP Alternatively, even if the conditions of Doss’s special
sentence are deemed collateral, Doss claims his plea counsel was
ineffective because he misinformed him about the nature of the special
sentence. See Stevens v. State, 513 N.W.2d 727, 728 (lowa 1994) (per
curiam) (“The rule is well established that defense counsel does not have
a duty to inform a defendant about the collateral consequences of a guilty
plea, but commits reversible error if counsel misinforms the defendant as
to these consequences.”). Doss testified his plea counsel told him “[the
special sentence] was used as a monitoring thing. As long as I followed
the actual law, I would be okay.”
On our de novo review, we do not accept Doss’s claim that he was
misinformed about the consequences of the special sentence. The record
at the 2007 sentencing tends to undermine this assertion. Counsel stated
on the record that Doss would have to go through SOTP that would be
“very strenuous and very rigorous.” Also, at sentencing, the victim’s
mother explained her daughter would have preferred that Doss receive
some prison time. Wistfully, the mother said her daughter had indicated
17
that “if this ever happened to her again, she would never speak out and
she would probably never suggest for other girls to speak out, because,
look, nothing’s going to happen anyway.” The mother continued, though,
“I did explain to [her] the severity of the lifetime probation and the sex
offender registry, to try to ease her thinking... .” (Emphasis added.)
Further, the court emphasized to Doss at his 2007 sentencing that
he “will also be subject to whatever further terms and conditions that your
probation officer feels are appropriate” and that Doss will be “on probation
for the rest of his life.” The court also told Doss he could end up in prison
if he “fail[ed] to participate appropriately” in SOTP. Thus, Doss’s claim
that he was misled by his counsel and later blindsided by the parole and
SOTP agreements does not ring true in light of everything that was said at
sentencing. On our de novo review, we reject that claim.
Even if counsel had breached an essential duty by failing to
adequately inform Doss of the consequences of his guilty plea, Doss has
now shown a reasonable probability that he would not have pled guilty but
for counsel’s errors. See Straw, 709 N.W.2d at 138 (“[T]o satisfy the
prejudice requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not have pleaded
guilty and would have insisted on going to trial.”). We agree with the
district court’s conclusion on this point. The only evidence that Doss
would have insisted on going to trial instead of pleading guilty are his self-
serving answers to leading questions. The following is one example:
Q. Did you know prior to pleading guilty that one of the
rules of special sentence was going to be that you were going
to have a curfew? A. No, I did not.
Q. Would that have affected your decision to plead
guilty? A. It would have. I would not have pled.
18
The parole agreement actually states that Doss has to obey a curfew ifone
is imposed. Furthermore, it is hard to credit Doss’s claim that the possible
terms of his special sentence and SOTP agreements down the road would
have made a difference in his plea decision given that Doss promptly
violated the terms of his probation. The circumstantial evidence indicates
Doss was preoccupied with the present, not the future, not even the
immediate future. Doss wanted to walk out of the courtroom on the date
of his sentencing. As the Supreme Court has said,
Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defendant’s
expressed preferences.
Lee v. United States, 582 U.S.___, __, 137 S. Ct. 1958, 1967 (2017).
Moreover, Doss does not deny that he committed the offense to
which he pled guilty in 2007. At sentencing, the district court stated on
the record that if Doss had taken the case to trial and been convicted, he
would have been sent to prison. And a conviction would have resulted in
the same lifetime special sentence. See Iowa Code § 903B.1. Doss also
avoided three other charges by pleading guilty. Doss does not assert that
he had a defense to any of the charges. Like the district court, we are not
convinced that Doss would have taken this case to trial. Accordingly, for
this reason as well, we reject Doss’s claim that his plea counsel was
constitutionally ineffective.
B. Constitutionality of the Rules Governing Doss’s Parole and
SOTP. We now turn to Doss’s claim that the parole and SOTP rules are
unconstitutional as applied to him. On appeal, he specifically challenges
rules restricting his internet use, dating, church attendance, independent
counseling, and contact with minors. Doss argues these rules violate his
19
freedom of speech and freedom of association under the First Amendment
to the United States Constitution and article I, section 7 of the Iowa
Constitution.* Doss asks that his parole revocation be reversed, that he
be released from prison, and that these restrictions be removed.
1. Error preservation. The State first points out that Doss failed to
challenge the restrictions on internet use below. We agree. Doss did not
testify below that he objected to these restrictions. They are not discussed
in Doss’s pretrial brief, his posttrial brief, or the district court’s ruling.
Doss did not preserve error.®
Additionally, the State points out that an administrative proceeding
and not a PCR proceeding is the appropriate way to challenge a parole
agreement. See lowa Admin. Code 205—15.1 (“An inmate, parolee, or
work releasee may appeal any action of the [BOP] staff or [the BOP] that
affects that person” subject to certain exceptions); id. r. 201—45.2
(establishing the BOP’s authority to impose conditions of parole); Frazee
v. lowa Bd. of Parole, 248 N.W.2d 80, 82-83 (Iowa 1976) (holding parole
board is an agency subject to chapter 17A).
Yet the State failed to raise this argument below. In fact, the State
filed no papers whatsoever in opposing to Doss’s PCR application, not even
*Doss also says in passing that the challenged rules violate his “right to be free
from cruel and unusual punishment, in violation of the Eighth Amendment and article I,
section 17 of the Iowa Constitution,” and his rights “under the Fifth and Fourteenth
Amendments, as well as article I, section 9 of the Iowa Constitution as they deprive him
of liberty and property without due process of law and are unreasonable, arbitrary, and
capricious.” However, Doss provides no further explanation or analysis in support these
arguments. “We will not speculate on the arguments [Doss] might have made and then
search for legal authority and comb the record for facts to support such arguments.”
Hyler v. Garner, 548 N.W.2d 864, 876 (lowa 1996). We deem these arguments waived on
appeal.
5SThe court of appeals also found that error was not preserved.
20
an answer.© We have characterized the issue of whether a prisoner must
bring a PCR action or bring an administrative proceeding as involving
authority to hear a case and not subject matter jurisdiction. See Franklin
v. State, 905 N.W.2d 170, 172 (lowa 2017) (“Although a court may have
subject matter jurisdiction, it may lack the authority to hear a particular
case for one reason or another.” (quoting Jn re Est. of Falck, 672 N.W.2d
785, 789-90 (Iowa 2003))}); see also City of Des Moines v. Des Moines Police
Bargaining Unit Ass’n, 360 N.W.2d 729, 731-33 (Iowa 1985) (en banc)
(explaining the district court lacked the authority to entertain a
declaratory judgment action even though it had subject matter jurisdiction
because the party seeking declaratory action had not exhausted all
administrative remedies). So it appears the State could waive its argument
by not asserting it below. State v. Davis, 581 N.W.2d 614, 616 (lowa 1998)
(per curiam) (noting “an impediment to the court’s authority can be
obviated by consent, waiver or estoppel”). Still, the economies taken by
the State in defense of this case may not make a difference here. As Doss
has clarified in his supplemental appellate brief, Doss is challenging the
parole and SOTP conditions as applied to him and as they resulted in his
parole revocation. He recognizes that he is bringing a PCR application
under Iowa Code section 822.2(1}(e). See lowa Code § 822.2(1)(e) (2017)
(authorizing a PCR application where “parole ... has been unlawfully
revoked”). In his attorney’s words:
[B]jecause Doss is not challenging the facial validity of any
IBOP policies, but rather, his ongoing incarceration as a result
of revocation of parole, PCR is the appropriate procedural
mechanism, and the IBOP’s argument that he should have
been required to pursue an administrative action under lowa
Code Chapter17A is meritless.
6The county attorney stated at the hearing that he would be filing a posthearing
brief, but he did not do so.
21
So the relevant question is whether Doss’s parole was revoked
because he violated unconstitutional parole or SOTP conditions. We do
not consider the general propriety of these terms or whether they should
be included in a future parole or SOTP agreement. Instead, we must decide
whether they indelibly taint Doss’s parole revocation.’
Doss argues that the conditions as applied to him violated both the
First Amendment of the United States Constitution and article I, section 7
of the Iowa Constitution. Although he contends that both the United
States and Iowa Constitutions were violated, Doss only advances one
constitutional standard. Thus, Doss relies exclusively on federal
constitutional authority except for State v. Aschbrenner, 926 N.W.2d 240(lowa 2019). In Aschbrenner, we decided that an internet identifier
reporting requirement for sex offenders did not violate either the First
Amendment or article I, section 7. Id. at 254. We applied the same federal
standard to both claims. Id.In recent years, our court has developed an approach for the
situation when a party asserts violations of parallel provisions of the
United States and Iowa Constitutions but does not offer a separate lowa
constitutional analysis. In this circumstance, our court has considered
the federal and state constitutional claims simultaneously, applying the
federal standards to the state constitutional claim but reserving the right
to apply them in a manner different from federal precedent. See, e.g., State
7A case worth noting is State v. Graham, 897 N.W.2d 476. There we rejected a
constitutional challenge brought by a juvenile offender who had been convicted of third-
degree sexual abuse and would be subject to a special lifetime sentence. Id at 477-78.
We noted that the offender had failed to develop a record as to the impact on him of the
only rule he specifically challenged—the 2000-foot rule. Jd. at 489. We also noted that
the offender had no “injury in fact” from that rule because he was currently in custody.
Id.22
v. Warren, 955 N.W.2d 848, 859 (lowa 2021); State v. Lyon, 862 N.W.2d
391, 398 (Iowa 2015); State v. Tyler, 830 N.W.2d 288, 291-92 (Iowa 2013).
The special concurrence criticizes this approach and maintains that
the state constitutional claim should be forfeited. Regardless of the merits
of our current approach, forfeiture seems wrong. Here, Doss clearly
asserted both federal and state constitutional claims, even though he
presented only one constitutional standard.®
“[A]n as-applied challenge alleges the statute is unconstitutional as
applied to a particular set of facts” as opposed to a “facial challenge ... in
which no application of the statute could be constitutional under any set
of facts.” Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 764 (lowa 2019)
(quoting Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 231 (lowa
2018)). At issue are the rules relating to dating, contact with minors,
church attendance, and independent counseling.
2. The grounds for Doss’s latest parole revocation. In this case, the
sentencing court placed Doss on probation and ordered Doss in 2007 to
complete SOTP until he achieved “maximum benefits” due to his
admission that had committed a serious sexual offense against a thirteen-
year-old girl. Fourteen years later, Doss has still not completed SOTP.
Instead, Doss has struggled. He has gone through probation and parole
revocation (twice) and served substantial time in prison. Doss’s poor track
record is relevant where, as here, the question is whether the restrictions
were constitutional as applied to Doss for purposes of revoking his latest
parole.
8This is not an either-or situation involving the law of two geographically distinct
sovereigns (such as Iowa and Minnesota). In that circumstance, only one state’s law
would actually govern. Here, by contrast, the State is constrained by both the United
States and the Iowa Constitutions. Although we encourage parties to present a separate
analysis under the Iowa Constitution whenever appropriate, a party is entitled to put
forward the same analysis in support of both federal and state claims.
23
On October 31, 2016, Doss signed the SOTP agreement in which he
agreed not to the use the internet, not to possess or view sexually explicit
materials, not to participate in outside counseling, not to attend church,
not to have contact with minors, and not to pursue dating or sexual
relationships. All conditions would be in effect for the duration of SOTP
“unless [Doss] obtain[ed] documented approval” from his parole officer or
another authorized person.
Doss’s parole violation report was dated December 19. It recorded
a series of violations that had occurred during November, as soon as Doss
had been discharged from the correctional facility. Doss had an
unexcused absence from SOTP on November 10. Also, Doss was found to
be visiting a “risqué dating site” entitled “Plenty of Fish,” searching for “16—
20 year old women on women” on YouTube, and_ accessing
“naughtydate.com.” Doss was “accessing numerous sites that are
pornographic.” The report noted that Doss had not been given permission
to access these sites and they were “not relevant to [his] current
employment or job searches.”
Moreover, Doss admitted being in a sexual relationship with an ex-
offender who was staying with him at a hotel. Doss was photographed
holding her two-year-old son on November 11. Regarding this child, Doss
had sent a text message, “Would you let me adopt [name of child] in court
so he can have a Dad that will be able to take care of him you know I love
him like my own son.” Another ex-offender also had stayed in a hotel room
with Doss. The report explained, “Both of these individuals have criminal
records and [Doss] has not received permission to be around them.”
None of the alleged parole violations related to church attendance or
independent counseling. Therefore, we do not consider these rules. We
also do not consider the internet restrictions because they were not
24
challenged below.? The remaining rules at issue relate to dating and
contact with minors. The record indicates Doss’s parole was revoked in
part because he pursued dating and sexual relationships with two ex-
offenders, sought additional dating opportunities online, and had contact
with the two-year-old child of one of his dating partners.
3. Constitutionality of the dating restriction as applied to Doss. “The
First Amendment embodies the freedom of association, the right to ‘enter
into and maintain certain intimate human relationships [without] undue
intrusion by the State.” Baker v. City of Iowa City, 867 N.W.2d 44, 52
(lowa 2015) (alteration in original) (quoting Roberts v. U.S. Jaycees, 468
U.S. 609, 617-18, 104 S. Ct. 3244, 3249 (1984)). However, this freedom
is not absolute, as restrictions on the rights of parolees to associate with
certain categories of people are a recognized part of the criminal justice
system. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 478, 92 S. Ct. 2593,
2598 (1972) (describing “associations or correspondence with certain
categories of undesirable persons” as a typical condition of parole).
“[Plarole necessarily involves intrusion by government into the lives of
parolees as they assimilate back into society.” State v. King, 867 N.W.2d
106, 121 (lowa 2015). Otherwise, “the goal and purpose of parole would
be difficult, if not impossible, to accomplish.” /d. at 122.
°In Packingham v. North Carolina, the United States Supreme Court struck down
a law that prohibited registered sex offenders from accessing social media, stating, “[T]o
foreclose access to social media altogether is to prevent the user from engaging in the
legitimate exercise of First Amendment rights.” 582 U.S.___,__—, 137 S. Ct. 1730, 1737
(2017). The Court added, however,
Though the issue is not before the Court, it can be assumed that the First
Amendment permits a State to enact specific, narrowly tailored laws that
prohibit a sex offender from engaging in conduct that often presages a
sexual crime, like contacting a minor or using a website to gather
information about a minor.
Id. at __, 137 S. Ct. at 1737. In Aschbrenner, we upheld an Iowa law that requires sex
offenders to provide their internet identifier. 926 N.W.2d at 254.
295
“When granting parole, the board of parole does not grant an inmate
‘the absolute liberty to which every citizen is entitled, but only ... the
conditional liberty properly dependent on observance of special parole
od
restrictions.’” Jd. at 121 (omission in original) (quoting Morrissey, 408
U.S. at 480, 92 S. Ct. at 2600). Consequently, a parolee may be subject
to restrictions on otherwise lawful activities. Morrissey, 408 U.S. at 481-
82, 92 S.Ct. 2600-01 (holding a parolee is properly subjected to
“restrictions not applicable to other citizens”). Although our court has not
set forth a standard for reviewing restrictions upon a_parolee’s
constitutional right to freedom of association, federal courts generally
review these restrictions by examining whether the restrictions are
“reasonably and necessarily related to the Government’s legitimate
interests in the parolee’s activities,” Birzon v. King, 469 F.2d 1241, 1243
(2d Cir. 1972), and “entail ‘no greater deprivation of liberty than is
reasonably necessary’ to achieve” the goals of rehabilitation and public
protection. United States v. Roy, 438 F.3d 140, 144 (1st Cir. 2006) (quoting
United States v. York, 357 F.3d 14, 20 (1st Cir. 2004)); cf United States v.
Turner, 44 F.3d 900, 903 (10th Cir. 1995) (“Courts have consistently
upheld imposition of conditions of probation that restrict a defendant’s
freedom of speech and association when those conditions bear a
reasonable relationship to the goals of probation.”); United States v.
Bortels, 962 F.2d 558, 560 (6th Cir. 1992) (per curiam) (“This Circuit
mandates that where a condition of supervised release is reasonably
related to the dual goals of probation, the rehabilitation of the defendant
and the protection of the public, it must be upheld.”); United States v.
Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (“The restriction on
[probationer’s] association rights is valid if: (1) primarily designed to meet
26
the ends of rehabilitation and protection of the public and (2) reasonably
related to such ends.”).
The only case Doss discusses in support of his challenge to his
dating restriction is United States v. Behren, 65 F. Supp. 3d 1140 (D. Colo.
2014), but that case actually supports the opposite conclusion. There, the
defendant argued the restriction in his sex offender treatment contract
establishing ‘relationships and dating may be completely or partially
restricted until RSA _ staff determines that a_ particular
situation/relationship is safe” violated his First Amendment right to
association. Jd. at 1157. The district court rejected this argument,
explaining,
While in treatment, it is reasonable and relevant for treatment
providers to closely review dating relationships, which
potentially may involve sex. Sex offender treatment need not
be limited to the particular type of sex offense for which a
defendant was convicted. Thus, this provision is not, on its
face, a greater deprivation of liberty than is necessary nor is it
necessarily an undue infringement of the right of association,
a right which routinely and necessarily is severely limited by
a sentence in a criminal case.
Id.The court acknowledged “a total ban on dating may constitute a
greater restriction on liberty than is necessary or a violation of the First
Amendment right to association,” but that did not appear to be true in the
defendant’s situation because his agreement provided a procedure for him
to obtain approval of dating relationships. Jd. at 1157. However, the court
concluded the defendant’s objection to his contract was not ripe for review
because the actual scope of the dating restriction on the defendant was
“not yet known” since the defendant never sought approval to date anyone.
Id. at 1158.
27
This case involves similar circumstances. The dating restriction was
only in Doss’s SOTP agreement, not his parole agreement. Had Doss
completed SOTP, he would not even be subject to this restriction. As in
Behren, the restriction on dating was a part of the offender’s treatment,
which “need not be limited to the particular type of sex offense for which
a defendant was convicted.” Id. at 1157. The record does not indicate that
Doss would have been prohibited from any dating whatsoever had he
sought permission. To the contrary, the parole officer testified that Doss
could have asked for an amendment to his treatment plan to have a
girlfriend. Instead of seeking permission, Doss immediately invited an ex-
offender to sojourn with him at a hotel. The parole violation report states
that Doss “has not received permission, nor had a conversation with his
[parole officer] about this person,” again implying the possibility of
permission being granted for a dating relationship. Meanwhile, through
“Plenty of Fish,” Doss was attempting to start an unauthorized online
relationship with an individual who appeared to be younger.
We conclude that the dating restriction, limited to the duration of
SOTP and with the ability to request modification, did not result in an
unconstitutional deprivation of Doss’s associational rights in this case.
The restriction is reasonably related to legitimate government interests
and does not involve “a greater deprivation of liberty than is necessary”
such that it amounts to “an undue infringement of the right of association,
a right which routinely and necessarily is severely limited by a sentence in
a criminal case.” Id.
4. Constitutionality of the restriction on contact with minors as
applied to Doss. Additionally, Doss was prohibited from having contact
with minors without approval. Doss complained that he got in trouble for
holding the two-year-old son of his girlfriend. This assertion needs to be
28
put in context. The girlfriend was an ex-offender staying with him at the
hotel immediately after his release. Within two weeks of obtaining his
freedom, Doss was photographed holding the child and was texting,
“Would you let me adopt [name of the child] in court so he can have a Dad
that will be able to take care of him you know I love him like my own son.”
This conduct is troubling, not because there appeared to be a risk
that Doss would sexually abuse the child but because Doss could be using
the child as a pawn while pursuing and engaging in a sexual relationship
with the child’s mother. Reasonable people can question whether that was
healthy or appropriate; certainly, it might interfere with SOTP.
We conclude that the restriction on contact with minors, limited to
the duration of SOTP and with the ability to request modification, did not
deprive Doss of his constitutional freedom of association in this case.!°
We take note of our decision in State v. Lathrop, 781 N.W.2d 288(lowa 2010). There we struck from a probation agreement a prohibition
on the defendant having any contact with minors without prior approval
of the probation officer. Jd. at 291. As here, the defendant had been
convicted of a sex offense involving a minor. Jd. Without discussing
constitutionality, we said that this condition was unreasonable and an
abuse of discretion because it “literally prohibits any and all contact with
any person under the age of eighteen regardless of how unintended,
incidental, or innocuous such contact might be unless the defendant has
obtained permission from his supervising officer.” Jd. at 299-300. We
10The prohibition on contact with minors without prior approval, unlike the others
challenged by Doss, was part of the parole agreement as well as the SOTP agreement.
Thus, it was not on its face limited to the duration of SOTP. However, the violation in
this case occurred while Doss was in SOTP, only two weeks after his supervised release.
Therefore, for purposes of this appeal, we need only address whether a temporary ban on
contact with minors while Doss was in SOTP and with the ability to seek exceptions from
his parole officer, was constitutional as applied to Doss. We conclude that it was.
29
worried that “[a] walk to the local fast food restaurant may place the
defendant in contact with children playing on the sidewalk, the paper boy
delivering newspapers, or an underage clerk taking payment for his
purchase.” /d. at 300. After suggesting that the main problem was the
bar on incidental contact,!! we remanded for the district court “to fashion
a more realistic and precise condition on the defendant’s probation that
would ensure he does not have contact with minors in situations that
would jeopardize the safety of the community and the defendant’s
rehabilitation.” Jd. at 299-301.
Here, however, the issue is somewhat different. We have to decide
whether a restriction on contact with minors in an SOTP agreement, as
applied to a recidivist parolee and the nonincidental contact that occurred
in this case, is unconstitutional. An SOTP agreement as part of parole
from incarceration is different from a probation agreement; in the former
situation, the offender is emerging from having been incarcerated.
“Historically, corrections officials have been given broad discretion with
respect to the role parole rightly plays in an individual prisoner’s
constructive reintegration into society.” Larsson v. Iowa Bd. of Parole, 465
N.W.2d 272, 275 (Iowa 1991); see also State v. Baldon, 829 N.W.2d 785,
844 (lowa 2013) (Mansfield, J., dissenting) (discussing parole agreements).
“(O]n the Court’s continuum of possible punishments, parole is the
stronger medicine; ergo, parolees enjoy even less of the average citizen’s
absolute liberty than do probationers.” Samson v. California, 547 U.S.
llWe said, “Certainly, given the circumstances of the defendant’s offense, it is
reasonable for the court to restrict the defendant’s interaction with minors.” Lathrop,
781 N.W.2d at 299. We also contrasted the case before us with State v. Hall, where the
court of appeals had upheld a condition of probation that prohibited contact with minors
“because the restriction contain[ed] an exception for ‘incidental contact in public places
where other responsible adults are present’ ” Jd. at 300 (alteration in original)
(quoting State v. Hall, 740 N.W.2d 200, 204 (Iowa Ct. App. 2007)).
30
843, 850, 126 S. Ct. 2193, 2198 (2006) (omission in original) (quoting
United States v. Cardona, 903 F.2d 60, 63 (1st Cir. 1990)). The “State has
an ‘overwhelming interest’ in supervising parolees because ‘parolees...
are more likely to commit future criminal offenses.’” Id. at 853, 126 S. Ct.
at 2200 (omission in original) (quoting Pa. Bd. of Prob. & Parole v. Scott,
524 U.S. 357, 365, 118 S. Ct. 2014, 2020 (1998)). Not only was the
contact here nonincidental, but it was connected to a sexual relationship
with the child’s mother that separately violated the conditions of SOTP.
Other courts have upheld sex offender treatment conditions or
supervised release conditions restricting association with minors to
protect children and promote the offender’s rehabilitation. See United
States v. Pennington, 606 F. App’x 216, 222 (Sth Cir. 2015) (upholding a
special release condition that the defendant, a convicted sex offender, not
date anyone with minor children without advance approval); United States
v. Ellis, 720 F.3d 220, 226 (Sth Cir. 2013) (per curiam) (upholding the
condition of defendant’s supervised release preventing him from dating
anyone who has children under the age of eighteen years old without prior
approval of his probation officer because the restriction was reasonably
related to the public safety goal of protecting children); United States v.
Levering, 441 F.3d 566, 569-70 (8th Cir. 2006) (upholding a special release
condition that prohibited the defendant, who was convicted of raping a
thirteen-year-old girl, from having contact with juvenile females unless
approved in advance by his probation officer); United States v. Bee, 162
F.3d 1232, 1235-36 (9th Cir. 1998) (upholding a special release condition
that barred a defendant who had sexually abused a six-year-old child from
having unapproved contact with children); but see United States v. Duke,
788 F.3d 392, 403 (Sth Cir. 2015) (per curiam) (striking down an absolute
lifetime ban on contact with minors imposed on an individual convicted of
receiving child pornography).
31
As the United States Court of Appeals for the First Circuit
summarized,
[A]ssociational conditions [on interactions with minors] may
be proper where the defendant has recently committed a sex
offense against a minor, orwhere the intervening time between
a prior sex offense and the present conviction is marked by
substantial criminal activity, or where the defendant’s
conduct otherwise indicates an enhanced risk to minors.
United States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016). It also noted such
conditions are generally “ ‘sufficiently circumscribed’ when they do not
place an outright ban on association with minors, but only curtail
association, such as by requiring pre-approval by the probation officer or
another authority.” Id. at 31-32.
As applied in this case, to a parolee who had committed sexual
abuse against a minor, who was undergoing SOTP, and who was engaged
in intentional contact with a minor in the hope of advancing an otherwise
prohibited dating relationship with the child’s mother, the condition was
reasonably necessary to the offender’s rehabilitation and therefore
constitutional.
wee
We end this opinion with a final note. Since Packingham v. North
Carolina, 582 U.S. __, 137 S. Ct. 1730, there have been a host of court
decisions dealing with supervised release conditions that broadly limit
Internet use.!2 The results in these cases have been mixed. Although we
12See, e.g., United States v. Bobal, 981 F.3d 971, 977-78 (11th Cir. 2020) (holding
a district court did not commit plain error by imposing a restriction on computer use as
a special condition of lifetime supervised release, noting the restriction did not completely
bar the appellant’s exercise of First Amendment rights because the appellant could obtain
court permission to use the computer in connection with employment or could seek
modification of his supervised release for other reasons); United States v. Carson, 924
F.3d 467, 473 (8th Cir. 2019) (“Because supervised release is part of a defendant’s
sentence, Packingham does not render a district court’s restriction on access to the
internet during a term of supervised release plain error.”); United States v. Eaglin, 913
F.3d 88, 94, 99 (2d Cir. 2019) (invalidating the appellant’s condition of supervised release
prohibiting him from “access|ing] the Internet from any computer or Internet-capable
32
conclude the issue is not properly before us today, it may return to us in
the near future. We suggest that the amici who participated in this case
keep their briefs handy on their computers.
IV. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court and the decision of the court of appeals.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
Christensen, C.J., and Waterman and McDermott, JJ., join in full
and McDonald and Oxley, JJ., join in part. Appel, J., files a special
concurrence. McDonald, J. files a special concurrence, in which Oxley, J.,
joins.
device in any location unless authorized by the Court or as directed by the U.S. Probation
Office upon approval of the Court”); United States v. Halverson, 897 F.3d 645, 657-59
(Sth Cir. 2018) (upholding a condition on supervised release that prohibited the
appellant’s use of the Internet and computer access unless approved in advance by the
probation officer); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017) (holding the
district court did not commit plain error when it imposed a condition of supervised release
preventing appellant “from possessing or using a computer, or having access to any online
service, without the prior approval of the probation office”); People v. Galley, __: N. E.3d
__,__, 2021 WL 49953, at *1 (IL App. Ct. 2021) (finding a broad ban on accessing or
use of social networking websites to be unconstitutional); State v. R.K., 232 A.3d 487,
505 (N.J. Super. 2020) (striking down a prohibition on accessing social networking sites
without authorization from the district parole supervisor as violating the free speech
rights of a paroled sex offender); State v. Johnson, 460 P.3d 1091, 1098-100 (Wash. Ct.
App. 2020) (holding appellant’s supervised release condition restricting him from the
Internet without approval from his community corrections officer was constitutionally
permissible); Mutter v. Ross, 811 S.E.2d 866, 872-73 (W.Va. 2018) (determining that a
broad ban on Internet use as a condition of parole was unconstitutional); State v. King,
950 N.W.2d 891, 898-909 (Wis. Ct. App. 2020) (holding conditions of defendant’s
extended supervision restricting his access to the Internet unless he received approval
from a department of corrections supervising agent did not violate defendant’s First
Amendment rights).
33
#19-1285, Doss v. State
APPEL, Justice (concurring specially).
I concur in result only. I write separately to explain why I cannot
join the majority opinion and to emphasize the narrowness of the holdings
in this case. With respect to the claim of ineffective assistance of counsel
related to plea bargaining, I would decide the case based on the failure of
Kenneth Doss to show prejudice required by the most recent United States
Supreme Court caselaw. I would not proceed to explore the delicate and
evolving question of what constitutes ineffective assistance of counsel in
the context of plea bargaining in the post-Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473 (2010), era. The majority’s essay on the issue lacks
historical perspective, does not recognize the position of the American Bar
Association (ABA) and other professional organizations on the duties of
counsel in the context of plea bargaining, and not only fails to grapple with
Padilla but also largely relies on pre-Padilla cases in the opinion. The
result is a collage of mechanical rules drawn from outdated cases that do
not address the substantial issues facing a court considering ineffective-
assistance-of-counsel claims in the plea bargaining context in the post-
Padilla era. As will be seen below, in my view, the best approach to the
duty of counsel to disclose the consequences of a plea is best reflected in
the ABA standards which require disclosures of “collateral” consequences
enmeshed with the criminal process that are severe and important enough
to impact the decision to plead guilty.
I. Issues Surrounding the Effectiveness of Counsel Regarding
the Plea Bargain.
A. Introduction. In this case, Doss claims that his counsel was
ineffective for failure to provide him with the applicable rules for lifetime
special sentences under Iowa Code section 903B.1 (2005). He raises his
34
claim under both the Sixth Amendment of the United States Constitution
and article I, section 8 of the lowa Constitution.
Doss does not advance a claim that the lowa Constitution should be
interpreted differently than its federal counterpart. The cases cited in
Doss’s brief are all cases under the Sixth Amendment. Under the
circumstances, we apply the applicable federal standards, though we
reserve the right to apply those standards in a fashion more stringent than
in federal courts.
Under the caselaw, in order to show ineffective assistance of
counsel, a defendant must show (1) breach of duty and (2) prejudice. See,
e.g., Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,
2065 (1984); State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Guilty
plea cases are often decided on the prejudice prong to avoid unnecessary
pronouncements on constitutional issues. Hill v. Lockhart, 474 U.S. 52,
60, 106 S. Ct. 366, 371 (1985). In the context of a challenge to a guilty
plea based on ineffective assistance of counsel, in order to show prejudice,
we require that a defendant demonstrate “there is a reasonable probability
that, but for counsel’s errors, he or she would not have pleaded guilty and
would have insisted on going to trial.” State v. Straw, 709 N.W.2d 128,
138 (lowa 2006), superseded in part by statute on other grounds, 2019 Iowa
Acts ch. 140, 8§ 28, 31 (codified at lowa Code §§ 814.6(1)(a), .7 (2020)), as
recognized in State v. Tucker, 959 N.W.2d 140, 153-54 (lowa 2021). We do
not require a mathematical 51% calculation, but only “a reasonable
probability ... sufficient to undermine confidence in the outcome.” State
v. Ondayog, 722 N.W.2d 778, 784 (lowa 2006) (citations omitted) (quoting
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
The United States Supreme Court, however, has recently provided
guidance on the question of prejudice in the context of plea bargaining in
35
Lee v. United States. 582 U.S. __, 137 S. Ct. 1958 (2017). In Lee, the
defendant was an undocumented immigrant who pled guilty to federal
drug trafficking charges that made him subject to mandatory deportation.
Id. at__, 187 S. Ct. at 1962-63. There was no question that his lawyer
acted incompetently. Id. at___, 137 S. Ct. at 1964. The only question was
whether there was an adequate showing of prejudice. Id.In Lee, the Court emphasized that the question is not whether the
defendant would likely have won at trial but rather whether the defendant
made an adequate showing that he would have opted to go to trial had he
been properly advised. Jd. at __, 137 S. Ct. at 1965. While the Court
noted his chances at trial were almost certainly very small, his chances
after his plea bargain were essentially zero. Id. at__, 137 S. Ct. at 1966-
69.
Importantly, however, Lee also discussed the type of evidence
required under the Sixth Amendment to show prejudice from failure to be
properly advised about the consequences of a plea bargain. Id. at__, 137
S. Ct. at 1967-69. According to Lee:
Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defendant’s
expressed preferences.
Id. at__, 137 S. Ct. at 1967.
In Lee’s case, the court found substantial and uncontroverted
contemporaneous evidence that supported the defendant’s claim of
prejudice. Id. at___, 137 S. Ct. at 1969. Lee repeatedly asked his counsel
about the deportation consequence. /d. at __, 137 S. Ct. at 1967-68.
Further, his substantial ties to the United States and lack of ties to South
Korea supported his claim. Jd. at___, 137 S. Ct. at 1968.
36
B. Application of Prejudice Principles. Turning to the case at
hand, Doss did not deny that he committed the underlying offense. Except
when an Alford plea is taken, admission of facts sufficient to support the
underlying charge is routine in guilty plea settings. Thus, the fact that
Doss made necessary statements to support a plea bargain is not a
disqualifying event: it certainly was not in Lee.
But the bulk of the record in this case developed by Doss does not
focus on contemporaneous events at the time of the plea but instead
consists of post hoc assertions that he would have turned down the plea
bargain had he known about the rules of his lifetime special sentence and
Sex Offender Treatment Program (SOTP). But the Supreme Court in Lee
urged lower courts not to solely rely on this type of evidence in finding
prejudice. He has offered no substantial contemporaneous evidence
supporting his claim.
The majority opinion in its analysis claims that Doss was
concentrating on the present, not the future, when he plead guilty. I have
found nothing in the record to support that supposition. But, the majority
is closer to the mark when it points out that a conviction on any of the
charged crimes would have resulted in a lifetime special sentence in any
event. See Iowa Code § 903B.1. As part of the plea agreement, the State
agreed to all other charges, allowed Doss to argue for a suspended
sentence, and reserved the right to argue in favor of the sentence
recommended in the presentence investigative report. But if the
presentence report recommended probation, the State would not resist.
These aspects of the contemporaneous record do not offer Doss support
for his claim that he would have rejected the plea bargain had he been
properly advised by his counsel.
37
Further, the contemporaneous record reveals that the district court
told Doss that he would “also be subject to whatever further terms and
conditions that your probation officer feels are appropriate” and that he
would be “on probation for the rest of his life.” He was also told he could
end up in prison if he failed to participate appropriately in SOTP. These
phrases do not reveal the substance of potential conditions, but they do
reveal that at the time Doss pled guilty he was aware of the fact of future
conditions. That general awareness of the fact of future conditions does
not support Doss’s claim that he would have rejected the plea had he
known the details.
That is all there is in the postconviction-relief record on the question
of prejudice. It seems to me it is clear that under Lee, the requirements of
prejudice have not been demonstrated. Although the majority does not
cite Lee or the analysis offered in Lee, it nonetheless comes to the proper
conclusion on the prejudice prong. Therefore, I concur in the result in this
case.
C. Attorney Competence in Plea Bargaining: The Erosion of
Formalism, the Rise of Functionality, and the Slow Demise of the
Direct Versus Collateral Consequences Dichotomy.
1. Introduction. The majority, however, is not content to find that
Doss failed to show prejudice. The majority provides an essay on whether
the disclosure of information about the rules of the special sentence
amount to a collateral consequence. I disagree with the majority’s framing
of the issue and with many aspects of its analysis. The majority ignores
what is at stake in plea bargaining and the critical developments in the
law of effective assistance of counsel in the plea bargaining context leading
up to the seminal case of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.
1473. Further, the majority ignores the role of the ABA and other
38
professional organizations that have developed standards for professional
competence that apply in the plea bargaining context. The shallow
discussion of effective assistance of counsel in the plea bargaining context
does not advance the law and, in fact, is an anchor applying outmoded
concepts.
2. “Utmost solicitude .. . for full understanding . . . of its
consequence.” Let’s start at the beginning rather than race into squibs
from selected cases. In accepting a guilty plea, a criminal defendant is
surrendering a panoply of constitutionally protected rights. McCarthy v.
United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969) (citing
waiver of the privilege against self-incrimination, the right to trial by jury,
and the right to confront accusers). As a result, in order to comport with
due process, a defendant must enter into a plea bargain knowingly and
voluntarily. Id.In determining whether a plea bargain has been entered knowingly
and voluntarily, a court must employ “the utmost solicitude ... in
canvassing the matter with the accused to make sure he has a full
understanding of what the plea connotes and of its consequence.” Boykin
v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 1712 (1969). Note the
phrase “full understanding.”
We have long held that a defendant “must have a full understanding
of the consequences of a plea before constitutional rights can be waived
knowingly and intelligently.” State v. Boone, 298 N.W.2d 335, 337 (lowa
1980) (emphasis added). That, of course, does not mean that the
defendant must know everything, but he must have a general knowledge
of the consequences of a plea that might affect his decisions to agree toa
deal with the prosecution. The entry of a guilty plea is thus a serious
matter to ensure that the defendant knows what the defendant is doing.
39
It is not a check-the-box routine that satisfies the formalistic appetite of
an appellate court but leaves an unschooled criminal defendant
bewildered by use of legalese and conceptual labels that have no meaning
to the average Jill or Joe.
The majority does not recognize the teaching of Boykin and
McCarthy. It simply drives past these cases. But in my view, the need for
full understanding, as embraced in Boykin and McCarthy, is the starting
point for any discussion of what a criminal defendant must know before
pleading guilty to a crime.
3. “Utmost solicitude .. . for full understanding . . . of its
consequence” requires understanding of the consequences of a lifetime
special sentence and SOTP. In State v. Hallock, the court of appeals
considered whether a sex offender is required to be informed of the
imposition of a lifetime special sentence. 765 N.W.2d 598, 604—06 (Iowa
Ct. App. 2009). The court of appeals reasoned that such a disclosure was
necessary to support the plea bargain. Id. at 605-06.
But the defendant is not simply entitled to be told the magic words
that the defendant is subject to a “lifetime special sentence.” An untutored
criminal defendant would have very little idea what the phrase means.
Instead, a criminal defendant who is subject to a lifetime special sentence
must be informed of the general nature of the lifetime special sentence in
order for his plea agreement to show “the utmost solicitude . . . for full
understanding... of [the] consequence” of pleading guilty. See, e.g., State
v. Jamgochian, 832 A.2d 360, 363-64 (N.J. Super. Ct. App. Div. 2003)
(noting potential ineffective-assistance claim in counsel failing to advise
defendant that community supervision for life would include travel
restrictions). To suggest that because the rules are subject to change and
are not imposed by a court does not matter to a criminal defendant who is
40
to have a full understanding of the consequences of a plea. A criminal
defendant who pleads guilty to qualifying sexual crimes is automatically
subject to the lifetime special sentence and is entitled as a matter of law
to at least generally know what it means to be under such supervision.
4. The irrationality of the distinction between direct and collateral
consequences. The majority generally embraces the distinction between
direct and collateral consequences. It cites several Iowa cases embracing
that approach. See State v. Fisher, 877 N.W.2d 676, 683 (lowa 2016); State
v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (en banc) (per curiam). Under
the simplistic and highly formalistic approach, a direct consequence must
be disclosed to a criminal defendant pleading guilty while an indirect
consequence is as a matter of law irrelevant to the plea bargaining process
and need not be disclosed. See Carney, 584 N.W.2d at 908.
In my view, it is time to throw the direct versus collateral distinction
overboard. First, the dichotomy is unworkable. As noted by one scholar,
“It|he case precedent is a case study in tortured interpretations.” Brian M.
Murray, Are Collateral Consequences Deserved?, 95 Notre Dame L. Rev.
1031, 1032 n.4 (2020). Another refers to the distinction between direct
and indirect as “a myriad of unworkable and unclear definitions and
rationalizations.” Ross Wood, Black Robes Do Not Require Full
Transparency: The Circular and Semantic Distinction Between Direct and
Collateral Consequences of a Plea, 33 Whittier L. Rev. 487, 496 (2012).
Scholarship gracing the pages of the lowa Law Review has characterized
the distinction between direct and collateral consequences as “artificial
[and] ill-conceived.” Jenny Roberts, Ignorance Is Effectively Bliss:
Collateral Consequences, Silence, and Misinformation in the Guilty-Plea
Process, 95 Iowa L. Rev. 119, 124 (2009) [hereinafter Roberts, Ignorance Is
Effectively Bliss]; see also 5 Wayne R. LaFave et al., Criminal Procedure
41
§ 21.4(d), at 979-98 (4th ed. 2015) (citing differences in caselaw regarding
manner of determining whether a consequence is direct or collateral);
Steve Colella, “Guilty, Your Honor”: The Direct and Collateral Consequences
of Guilty Pleas and the Courts That Inconsistently Interpret Them,
26 Whittier L. Rev. 305, 313-14 (2004) (noting inconsistencies in the
application of the dichotomy); Joshua Kaiser, We Know It When We See It:
The Tenuous Line Between “Direct Punishment” and _ “Collateral
Consequences,” 59 How. L.J. 341, 359-65 (2016) (describing the line
between direct and collateral consequences as fictional).
The direct versus collateral dichotomy leads to ridiculous results,
including in Iowa, where revocations of drivers’ licenses under some
statutes are said to be a direct consequence, while others are indirect. See
Fisher, 877 N.W.2d at 684-85; Carney, 584 N.W.2d at 909. The impact
on the defendant is identical. And, of course, losing a driver’s license is a
far greater sanction with far greater consequence for many criminal
defendants than, say, a $100 fine. Yet, the imposition of a small fine must
be communicated by counsel as it is a “direct consequence” of pleading
guilty, while the loss of the driver’s license in Carney is somehow magically
converted into irrelevancy by being classified as indirect. Carney, 584
N.W.2d at 909.
Second, there is increased awareness that “[iJmposing collateral
consequences has become ... part and parcel of the criminal case.”
Gabriel J. Chin & Margaret Love, Status as Punishment: A Critical Guide to
Padilla v. Kentucky, 25 Crim. Just. 21, 22 (2010); see also Wayne A. Logan,
Challenging the Punitiveness of “New-Generation” SORN Laws, 21 New
Crim. L. Rev. 426, 427 (2018) (stating that many onerous mandates of sex
offender laws have become common collateral consequences to sex
offenses). As noted by another scholar, “[a] focus on collateral sanctions
42
sets the bar far too low, ignoring the true life impact important to clients.
It also squanders many critical opportunities for leveraging better results.”
McGregor Smyth, “Collateral” No More: The Practical Imperative for Holistic
Defense in a Post-Padilla World... Or, How to Achieve Consistently Better
Results for Clients, 31 St. Louis U. Pub. L. Rev. 139, 159 (2011).
5. The developing law of effective assistance. The Supreme Court
has a long history of relying upon the standards developed by the ABA and
other reputable legal associations in the development of standards for the
effective assistance of counsel. See, e.g., Williams v. Taylor, 529 U.S. 362,
396, 120 S. Ct. 1495, 1515 (2000); Roe v. Flores-Ortega, 528 U.S. 470,
479, 1208S. Ct. 1029, 1035-36 (2000); Strickland, 466 U.S. at 688-89, 104
S. Ct. at 2065. The ABA Criminal Justice Standards provide:
Defense counsel should identify, and advise the client of,
collateral consequences that may arise from charge, plea or
conviction. Counsel should investigate consequences under
applicable federal, state, and local laws, and seek assistance
from others with greater knowledge in specialized areas in
order to be adequately informed as to the existence and details
of relevant collateral consequences. Such advice should be
provided sufficiently in advance that it may be fairly
considered in a decision to pursue trial, plea, or other
dispositions.
Criminal Justice Standards for the Defense Function Standard 4-5.4(a) (Am.
Bar Ass’n 2015). See generally Gabriel J. Chin & Richard W. Holmes, Jr.,
Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87
Cornell L. Rev. 697, 714-17 (2002) (discussing the ABA standards)
[hereinafter Chin, Effective Assistance].
The ABA standards are not a new or solitary development. The
National Legal Aid & Defender Association has declared since 1995 that
lawyers must be aware of “other consequences of conviction such as
deportation or civil disabilities’ when engaging in plea bargaining.
Performance Guidelines for Criminal Defense Representation Guideline 6.2
43
(Nat’l Legal Aid & Def. Ass’n 2011). And nearly fifty years ago, Professor
Tony Amsterdam in his leading treatise declared that “[n]o intelligent plea
decision can be made by either lawyer or client without full understanding
of the possible consequences of a conviction.” Anthony Amsterdam, Trial
Manual for the Defense of Criminal Cases § 201 (4th ed. 1984).18
In the fashioning of the law of ineffective assistance of counsel under
the Sixth Amendment, the Supreme Court routinely looks to these
professional norms. Ifin this case we were to do the same, there would be
a firm basis for concluding that effective counsel must reasonably research
and communicate the collateral effects of a criminal conviction when
engaged in plea bargaining.!+ Notably, unlike the majority opinion, the
professional authorities do not contain formalistic direct or indirect
approaches, fine analysis of the likelihood of a collateral consequence, or
Justinian evaluation of causation. The professional norms stress instead
functionality and the need to adequately inform both the lawyer and the
client of the consequences of pleading guilty. These professional norms
should guide our analysis, not be ignored. And, the norms have been
largely adopted by the United States Supreme Court in many settings.
138Several other scholars have taken similar positions. See Chin, Effective
Assistance, 87 Cornell L. Rev. at 699 (suggesting that effective counsel must
communicate collateral consequences); Roberts, Ignorance Is Effectively Bliss, 95 Iowa L.
Rev. at 167-93 (suggesting the United States Supreme Court should require
communication of collateral consequences to empower personal decisions of defendant).
14The ABA’s Criminal Law Section and the National Institute of Justice developed
the National Inventory of Collateral Consequences of Conviction that makes information
readily accessible to all lowa lawyers. Collateral Consequences Inventory, Nat'l] Inventory
of Collateral Consequences of Conviction, https: //
nicce.nationalreentryresourcecenter.org/ (last visited June 21, 2021). The online
database identifies and categorizes the statutes and regulations that impose collateral
consequences in all fifty states, the federal system, the District of Columbia, U.S. Virgin
Islands, and Puerto Rico. See generally Joshua Kaiser, Revealing the Hidden Sentence:
How to Add Transparency, Legitimacy, and Purpose to “Collateral” Punishment Policy, 10
Harv. L. & Pol’y Rev. 123 (2016) (discussing collateral punishments in each state).
44
6. The departure from direct versus collateral formalism in Padilla v.
Kentucky. In Padilla v. Kentucky, the Supreme Court considered a case
where a criminal defense lawyer incorrectly advised his client that pleading
guilty to felony trafficking in marijuana would not affect his immigration
status. 559 U.S. at 359-60, 130 S. Ct. at 1478. Although deportation was
a civil concept and was not directly imposed by the court, the Court noted
that “[t]he weight of prevailing professional norms supports the view that
counsel must advise her client regarding the risk of deportation.” Id. at
367, 130 S. Ct. at 1482. The Court noted that it had “never applied a
distinction between direct and collateral consequences to define the scope
of constitutionally ‘reasonable professional assistance.’” Id. at 365, 130
S. Ct. at 1481 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
The Court declared that “how to apply the direct/collateral distinction has
no bearing on the disposition of this case.” Jd. at 364 n.8, 130 S. Ct. at1481 n.8. What was important to the Court was that that deportation was
“intimately related to the criminal process.” Id. at 365, 130 S. Ct. at 1481.
Although deportation might be considered collateral under the collateral
versus direct dichotomy, the Court declared that “we find it ‘most difficult’
to divorce the penalty from the conviction in the deportation context.” Id.
at 306, 130 S. Ct. at 1481. And, the Court recognized the severity of the
consequence and its impact on the defendant. Jd. at 373, 130 S. Ct. at
1486.
So what we have in Padilla is a complete recasting of the approach
to the role of counsel in the plea bargaining context. Formalistic rules like
the direct versus collateral consequence dichotomy were discarded in favor
of a functional, fact-intensive exploration of the importance of the
consequence to a particular defendant. Padilla was thus returning
doctrine to a focus on the defendant and whether the plea was knowing
45
and voluntary and away from considerations of court management and
using formalistic and irrational doctrine as a way to close the courthouse
door to the proverbial flood of claims.
But one does not have to take my word on the subject. The
concurring and dissenting opinion in Padilla offered telling insights into
the importance of the decision. Justice Alito would have affirmed the
collateral consequence rule, noting that the majority’s abandonment of it
“marks a major upheaval in Sixth Amendment law.” Id. at 383, 130 S. Ct.
at 1491 (Alito, J., concurring in the judgment). Justice Alito, correctly,
observed that the majority opinion was inconsistent with past precedent.
Id. at 382-84, 130 S. Ct. at 1491-92. Although unstated, Justice Alito’s
point was that the approach to ineffective assistance of counsel in Padilla
was inconsistent with established precedent like State v. Carney that
stressed the direct versus collateral dichotomy.
Justice Scalia also would have retained the collateral consequences
rule. Id. at 390, 130 S. Ct. at 1495 (Scalia, J., dissenting). He also wrote
that the logic of the majority position rejecting the collateral versus direct
distinction and analyzing the severity and impact of a consequence on a
defendant could not be limited to deportation “except by [an act of] judicial
caprice.” Id. at 391, 130 S. Ct. at 1496. The majority opinion, however,
by not addressing Padilla, does just that.
So, if Justice Alito and Justice Scalia are right, the direct versus
collateral consequence dichotomy utilized in this case by the majority
opinion in its interpretation of the Sixth Amendment is doubtful at best.
They were both convinced that Padilla would extend beyond its
immigration context into other consequences of conviction. As noted by
one scholar who agreed with the Scalia and Alito assessment, the first
lesson of Padilla is that “the direct-collateral distinction is no longer a
46
necessary framework for inquiring into whether the Sixth Amendment
applies to advice concerning a civil consequence at the plea stage.” Colleen
F. Shanahan, Significant Entanglements: A Framework for the Civil
Consequences of Criminal Convictions, 49 Am. Crim. L. Rev. 1387, 1412
(2012); see also McGregor Smyth, From “Collateral” to “Integral”: The
Seismic Evolution of Padilla v. Kentucky and its Impact on Penalties Beyond
Deportation, 54 How. L.J. 795, 800, 812-14 (2011) (describing the duty of
attorneys to advise clients on all of the consequences of plea deals).
There is one additional point to be made about Padilla. What if the
law is not as clear as it was in Padilla that the sanction of deportation was
automatic or nearly so? What if there was some wiggle room and it is not
possible to conclude that the consequence would be automatic? Was that
the end of counsel’s obligation? The Court said no. Under these
circumstances, counsel was required to advise the defendant that there
may be immigration consequences of some kind. 559 U.S. at 369, 130
S. Ct. at 1483 (majority opinion). In situations where the inevitability of a
consequence is less than clear, such ambiguity would impact “the scope
and nature of counsel’s advice.” Jd. at 369 n.10, 130 S. Ct. at 1483 n.10.
In other words, the advice required would be variable depending upon
whether the consequence was certain, likely, or merely possible.
7. Post-Padilla experience. In the post-Padilla era, the caselaw has
been mixed. Some cases seek to minimize the scope of Padilla by
emphasizing its unique features.
Other courts, however, have taken the case at face value. Several
courts, for instance have recognized that even where the consequences are
not absolutely certain, counsel may have a duty to discuss consequences
when discussing plea bargaining. In Bauder v. Department of Corrections,
the court noted that when the law is unclear, the attorney must advise of
47
the risk of adverse consequences. 619 F.3d 1272, 1275 (11th Cir. 2010)
(per curiam); see also State v. Ortiz-Mondragon, 866 N.W.2d 717, 726-27
(Wis. 2015) (same).
A number of other courts have extended the Padilla analysis to cases
involving sex offender registration. See, e.g., People v. Dodds, 7 N.E.3d 83,
97 (Ill. App. Ct. 2014); People v. Fonville, 8304 N.W.2d 878, 894-95 (Mich.
Ct. App. 2011). Similarly, the Supreme Court of Illinois followed Padilla in
determining that the possibility of civil commitment upon conviction of
triggering sexual offenses was sufficiently certain and enmeshed in the
criminal process to give rise to a Sixth Amendment duty. People v. Hughes,
983 N.E.2d 439, 457-58 (Ill. 2012).
8. Evolving approach to effective assistance in plea bargaining.
Based on the above discussion, and the dispositive nature of the prejudice
prong, I would not use this case to further cement into our law pre-Padilla
doctrine. I would also decline to embrace formal rules that have the effect
of irrationally winnowing claims but do not otherwise advance the values
that underlie due process and the right to counsel. As in Padilla, I would
focus on the defendant and whether, under all the facts and
circumstances, his assent to a plea can fairly be characterized as knowing
and voluntary.
It is a back-to-basics approach, a restoration of principles of Boykin
and a rejection of constitutional innovators who developed the direct
versus collateral dichotomy. I would require that in order for there to be
a duty for counsel to discuss a consequence with the client in the plea
bargaining context, the consequence must be enmeshed with the criminal
process and must pose a significant enough risk of substantial adverse
consequences that it could impact the decision of a particular defendant
to enter into a plea. The likelihood that the collateral consequence would
48
come to pass does not need to be absolute but, as taught in Padilla, the
advice given must be appropriate to the risks posed by the consequence.
My approach is consistent with Boykin and Padilla, with the professional
standards cited above, and with basic concepts of due process.
Specifically, in this case, Doss was entitled to at least know that a
special sentence involves an extended period of intense supervision by the
state, including regulation of where he lives, his ability to travel, his
methods of communication, and his social interactions, and that the
consequence of violation of the terms of supervision may include extended
periods of incarceration. See Jamgochian, 832 A.2d at 363-64 (noting a
potential ineffective-assistance-of-counsel claim when an attorney fails to
advise client that community supervision for life would include travel
restriction); People v. Monk, 989 N.E.2d 1, 5-6 (N.Y. 2013) (Rivera, J.,
dissenting) (stating that a plea bargain where defendant does not know
that a violation of the special sentence may lead to incarceration is not
knowing and voluntary).
I agree, of course, that the details of the terms of special sentences
and SOTP are subject to change. Asa result, the majority is correct when
it states that it is not possible to predict precisely what each and every rule
of a future regulatory regime will look like with great precision. But, the
mere fact that we cannot predict with precision the details of a future
regime does not induce some kind of lingual paralysis that prevents
attorneys from telling their clients what is presently known. Certainly, it
is not enough for counsel to simply tell a criminal defendant that he may
be subject to a lifetime special sentence or SOTP and then assume the
silent smile of the Mona Lisa or the gaze of the Sphinx when the client
asks for an explanation.
49
We should not dictate exactly what kind of disclosure must be made
in every case, but it must be enough to ensure that a plea bargain is truly
knowing and voluntary for each individual defendant. The parole and
SOTP provisions are presented in Exhibits A and B of this opinion.
Attorneys may seek to provide their clients with copies to provide a flavor
of the kind of supervision they may experience upon their release from
prison. Or, attorneys may prefer to give a general overview of lifetime
special sentences or the SOTP program to clients that may be subject to
them. But one thing is for sure. The focus of our evaluation of ineffective-
assistance-of-counsel claims in the plea bargain context must be on the
defendant and whether the defendant knows what the defendant is doing
when facing a decision regarding whether to accept a plea.
II. Conclusion.
I concur in the result in this case based on the failure of Doss to
show prejudice. For the reasons expressed above, I cannot join the
balance of the majority’s opinion.
EXHIBIT A
PLAINTIFF'S
EXHIBIT
«|
E-FILED 2019 MAY 23 3:46 PM WARREN - CLERK OF DISTRICT
BEFORE THE BOARD OF PAROLE OF THE STATE OF IOWA
IN THE MATTER OF PAROLE OF PAROLE ORDER
6851583 - Doss, Kenneth Lee ; &
AGREEMENT
PAROLE ORDER
You re hereby notiied that the lows Goaed of Parola, pursuant i» Chapter 606 ofthe lowa Gode, considered your
prospeois for parole and wark release on June 30, 2015 and determined thet you are able and wilting to fulfil
obiigations of a law abiding olfizen and that there is 2 reasonable probability that you aan be released without detriment to
the community or youreelf.
The jowa Board of Parole hereby imposes st a future date the term of special sentence parole required by lowa Code
sections 9038,1/003B.2 (lifetime suparviston/10 year supervision) to be imposed upon the date of discharge of the
underlying offense for which you are eubjest to the special sentence perole pruvisions, You will be processed for the
refegse on of after August 12, 2016 pursuant to the rules and procedures of the lows Department of Corrections, You will
not be yeleased until the Depertment of Correctional Services approves your parole plan end unti you agres to and sign
the terms and conditions of your parcle. The Board of Perole may rescind your prior to your releases If institutional
miscondyct or adverse information not previously considered Ia brought to the of the Board.
You are subject to the supervision of the District Dapastmant of Correctional Services while you are on parole
until your discharge date unless earfier ee woteraes DST me oe ar er canntem eee a
established by the Department of Corrections, the ee ee eae
agree to comply with any additional conditions that may be added during {he course of your supervision by your
supervising Judicial Disirlat Direotor or Directors designee or the Board of Parole:
10: Restrictions on Movement
{ shall report immediately to the superviaing Judicial District Direolor or Director's designee, designated to my parole,
ese regina lye maar ts Hind ema talel yriabsing- yy momrpeee el
receive prior approval from the supervieing Judiolal ict Director or Director's designee. I will obey any curfew
restrictions placed upon me by supervising Judicial District Direator or Director's ‘designee. ! shall not leave the county
of my re: | recelve permission to travel from my supervising Judiolal District Director or Director's
10b, ¢ will reside at the Residential Correctional Faolity until disoharged by the Residental Manager
and/or my supstvising- Judicial District Director or Director's designee. | shell obey ail of the rules and
Teguladions of the Residential Correctional Faollity.
20; Supervision Cenduct ‘
1 shal{ maintain contact with my supervieing officer as diracied and shall not te to, mislead, or misinform my
offloer either by statement or omission of Information. | shall follow all conditions that can and may be placed on my
perale by the Board of Parole and any additional conditions that oan by my supervising Judicial District
Director or Director's designas at any time duting my supervision.
20a. | shell participate In Intensive parole supervision program unless my supervising Judicial District
Director or Director's designee determines otherwise.
200. | understand that | will ba on parole supervision unti the actual date of the discharge of the
Board of Parole ° Pegs 1 of & oph 22016
22
1
E-FILED 2019 MAY 23 3:46 PM WARREN - CLERK OF DISTRICT COURT
Sentenoe(e) for whish | am on aupervision and that ! wil not be discharged earfy from supervision
unless this condiion Is, otherwise, amended by the Board of Parole.
22. | stiai not use the intemet or other forms of electronic social media for anything other than Job
searches, unless approved by my supervising Judicfel District Director or Director's Designee.
30: Restrictions on Agsocistion
{ shall not associate with any person a nm supervision ot of any person known or
Saran a eeepageni eaten unless approved by ee
denne |e etl enon wt apt nd eae ed rh Hom from essduiiive,
of physical abuse, Icha fine wo creat or closed coeaecl Or cornmurdontjon wit ary VES oe tee Gantly 47 acy
prorat yng tpi aan of the family of any viel is authorized by my
supervising Judicial District Director or Director's designes.” :
30b. { shall have no direct or Indirect contact or communication with any “etim or the fantity of any
victm of my offense(s).*
S00. | ahall have No contact with any minor child - ~ direct or indirect. | shall net work, reside, establish
Contact with or join any group or organization that desis with minors.
appointments necessary completion
auccesafut lation of sion. | shell! leave or walvet dose
comp! my parole auperv! sign any release or io marth bat yang
suthorize my parole offer to acess any Information relating to any veatment
requested by my parole officer.
40x. | shot completa sex offender trestment and sax offender aftercare § popes my
Supervising Judicial ——— t
‘0: Substance Abuse
a or sini neammameerh kalteitlgirsientalinie drug testa when
directed by my supervising Judicial District Director or Director's designea. | shall not enter sor Heuer sioves or
cther establishments where the primary activity Ie the sale of alcoholic beverages. | will not use, Ingest, Inject, huff,
possess of amoke any Legal or: bstances. | shall not use, purchase, Fevers creat ney ewes
prescribed to me by a physician.
£0, Lesa) Sonduct
aad cey a ave and otbence. shal nya pr thon wn 24 no (am arre a citation or if
{have any contact with law enforcement, { shall not own, possess, use = emirates
imitations thereof, unless approved by pahpeporer eames agp bat eo sr ran are cued
wren perl tc oan ea ie, wih ot each ‘warrant of arrest or ble
perata hal faire bereapad e-bay na ichened - walve extradition to the ——- Jee Lavoe ey
‘States (neluding Indian iano Land) agree
Gieithy atiy sauadiebe to oa tehic Se Gaeta afiomen, = 5 =
7: Economic
red foi prer e gtiPage fnsh o
ee ee ee et ce Judictal Disticf Director or
pobre cha comply with all the terme of my restiitition plan. | wil pay to:
Correctional Servines an enrollment
Board of Parte Pegs 2 of 3
|
23
32
E-FILED 2019 MAY 23 3:46 PM WARREN - CLERK OF DISTRICT COURT
: i
. :
Se: Ditving ‘
| shall not operate @ mator vehiole upon the public roads and highways unless | hhive a current, valld driver's fcense
and Ineurancs, if cee gman ger tony ntnetnbarrmagrarl ghee yeeros Ss
Department ef Traraportaion, must receive - :
dasignee priar to getting my driver’s Inense,
Sa eee ee et et
In = an
Sis His pun aol nesiuonasi teks Tuneaaevartra om
excuse conditions of parole, aware areraosepaering soe ke
in the supervision of my parale. = "y
Signed and winesesd this __/ 9 day of Aft, penny eet BLS.
Ys Attiac
Warden's or Designes’s
(aE
Parole Officer's Signature doin F. Hodges 4D. Chal ~
Board of Parate
Parolee’s Signature
° The violin’s indladea epacee, chikd, motor Sethor, sibs, stop-poronts, siep-obfidren, step-siblings, andior | gquerten, gunts end
manoseupl anienaleen fia vomeertany aaemao ts
pul oro
ml. Aer Oe r
VYis/ie
Dore
Board of Parole Page 3 of 3
24
93
EXHIBIT B
E-FILED 2019 MAY 23 3:46 PM WARREN - CLERK OF DISTRICT G
PLAINTIFF’S
EXHIBIT
2
Sex Offender Treatment Program
Rules & Conditions Contract
Please read this contract carefully. Initial after each rule on the line provided to indicate a full
understanding of the condition as listed.
1.) T agree to abide by all conditions as stated in this contract throughout the
duration of my supervision unless I obtain documented approval for any
changes, additions or amendments by my PO. Board of Parole (when required)
and SOTP team.
Be 2.) I will attend SOTP group sessions as scheduled.
~
3.) I will abide by ail rules of confidentiality. A breach of confidentiality is serious
and may be considered grounds for dismissal from SOTP. 1 understand that any
information shared in group may be discussed by my group facilitators.
SOTP suff. DUC DCS stall. law enforcement. Uoard of Parele, as eli as the
Coun, and my respective cuunty attorney's office ax necessary.
I will complete all assignmenis and actively participate in group. It is my
fie " responsibility to inform SOTP staff ifl have difficulty reading or writing.
5.) I will complete all assessments and evaluations as required.
6.) I will complete all polygraph examinations as required.
7.) I will not participate in any form of outside counseling. | understand that | may
be required to participate in individual treatment when recommended by my PO
and SOTP staff.
8.) Twill not attend church ur religious gatherings. in any form or location.
: 9.) I will not establish, pursue or maintain any dating, romantic and/or sexual
relationship(s).
KE’ 0.) I will not purchase, possess or view sexually explicit materials. 1 will not enter
any establishment.in which the primary intent of the business is for sexual
entertainment or of a pornographic nature as determined by my PO/SOTP staff.
ZG
Ky
FOX 12.) 1 will not view or possess images/photos/videos of my victim(s) or minors.
13.) [ will not have direct or indirect contact with the victim(s) of current or
previous offense(s)
11.) 1 will not view, access or use the Internei through any means.
14) 1 will not have direct or indirect contact with any minors.
ae 25
KD003372
54
E-FILED 2019 MAY 23 3:46 PM WARREN - CLERK OF DISTRICT COURT
BE 5.) 1 will not enter any establishment in which the primary intent of the business is
providing services exclusively or primarity for minors.
LE ws 1 will submit an Employment Verification Form to my PO prior to reporting for
work, I will inform my employer of my status on parole/probation and the lowa
Sex Offender Registry.
17.) 1} will not engage in sexually offensive behavior in public or otherwise.
18.) T understand I am responsible for all SOTP costs and supervision fees incurred.
STATEMENT OF UNDERSTANDING
I confirm that I understand all rules and conditions outlined in this document. I agree to abide by
all conditions as stated throughout the duration of my supervision unless } obtain documented
approval for any changes, additidns or amendments by my PQ, Board of Parole om hen required)
and SOTP team.
Name (Printed): Ka 4: 2s
Signature: TE
Fifth Judicial District Department of Correctional Services:
SOTP Staff Signature: on Rerchavashe=cxsaeeenoeespsopnmtneeentnsenmenn
Date: __!9
os KD003373
395
#19-1285, Doss v. State
McDONALD, Justice (concurring specially).
I concur in the majority’s resolution of Doss’s claims arising under
the Federal Constitution, but I concur in only the judgment with respect
to the resolution of Doss’s claims arising under the Iowa Constitution.
With respect to those claims, Doss did not adequately brief them. The
majority nonetheless resolves Doss’s state constitutional claims by
adopting federal constitutional law as lowa constitutional law. For the
reasons set forth in my separate opinion in State v. Gibbs, I believe the
majority’s approach is procedurally and substantively flawed. 941 N.W.2d
888, 902-05 (Iowa 2020) (McDonald, J., concurring specially in the
judgment). I would hold Doss forfeited his state constitutional claims by
failing to brief the claims with citations to relevant lowa authority. See id.
at 905; see also Iowa R. App. P. 6.903(2)(g)(3); State v. LaMar, 260 lowa
957, 970, 151 N.W.2d 496, 503 (1967) (“We have adequate procedure, if
followed, to properly determine the constitutional question involved and
there is a legitimate interest and a sound public purpose to be served by
a procedural rule which requires that ... this court be apprised of the
question of law involved in the manner prescribed by the statute and our
decisions.”).
Procedurally, the issue is fairly clear. The rules of appellate
procedure require that each issue raised must be supported by an
argument with citation to authorities. See Iowa R. App. P. 6.903(2)(g}(3).
The failure to cite relevant authorities “in support of an issue may be
deemed waiver of that issue.” Id. This is settled law in Iowa. See State v.
Short, 851 N.W.2d 474, 479 (lowa 2014) (collecting cases). Doss failed to
comply with this requirement.
56
Substantively, the majority’s approach is flawed. To highlight the
substantive issue, consider the following hypothetical. A plaintiff brings a
tort claim arising under Iowa law in an Iowa court and receives an adverse
judgment in the district court. On appeal, the plaintiff does not brief or
discuss Iowa tort law but instead briefs and discusses the tort law of a
separate sovereign, say Minnesota. The plaintiff does not ask this court
to consider and adopt Minnesota tort law on the relevant question.
Instead, the plaintiff briefs and discusses Minnesota tort law and then
asks this court to reject Minnesota tort law and do something different
than the Minnesota Supreme Court has done or would do if faced with the
relevant question. It seems apparent we would never resolve a claim in
this manner. Except we do in cases involving claims arising under the
Iowa Constitution. Only in cases involving claims arising under the lowa
Constitution does this court not require parties to raise issues, brief them,
and cite relevant authority. Only in cases involving claims arising under
the Iowa Constitution does this court adopt the law of a separate
sovereign—the federal government—whether or not it is the same as lowa
law for the purposes of resolving claims under Iowa law. That’s bonkers.
To the best of my knowledge, no other state has adopted such an
approach. Instead, other states hold a defendant waives or forfeits
underdeveloped state constitutional claims. See, e.g., State v. Zerkel, 900
P.2d 744, 758 n.8 (Alaska Ct. App. 1995) (“When a defendant asserts that
the Alaska Constitution affords greater protection than the corresponding
provision of the Federal Constitution, it is the defendant’s burden to
demonstrate something in the text, context, or history of the Alaska
Constitution that justifies this divergent interpretation. Given the
defendants’ inadequate briefing, this argument is waived.” (citations
omitted)); State v. Dean, 76 P.3d 429, 432 n.1 (Ariz. 2003) (en banc) (“While
57
Dean argues that the search in this case violates both the Fourth
Amendment and Article 2, Section 8 of the Arizona Constitution, he
presents no separate arguments based on the state constitutional
provision. We therefore address his claim only under the United States
Constitution.”); State v. Ells, 667 A.2d 556, 559 (Conn. App. Ct. 1995)
(declining to review state constitutional claim due to inadequate briefing);
State v. Howard, 473 P.3d 857, 859 n.2 (Idaho Ct. App. 2020) (“Howard
points to the Idaho Constitution and makes the broad assertion that it
provides additional protections beyond the Fourth Amendment. However,
other than his broad assertion, Howard does not make a legal argument
as to how the Idaho Constitution provides more protections or explain
factually why Howard is entitled to these heightened protections.
Consequently, we will not consider his state constitution argument on
appeal.”); Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because
Abel presents no authority or independent analysis supporting a separate
standard under the state constitution, any state constitutional claim is
waived.”); Hagez v. State, 749 A.2d 206, 217 (Md. Ct. Spec. App. 2000)
(“Nevertheless, because appellant has not presented a separate analysis of
his double jeopardy claim under either Article 5 or common law, we confine
our analysis to the application of the Fifth Amendment’s Double Jeopardy
Clause.”); State v. White, 199 P.3d 274, 280 (Mont. 2008) (declining to
resolve “undeveloped” state constitutional claim), overruled on other
grounds by State v. Tirey, 247 P.3d 701 (Mont. 2010); State v. Oakes, 13
A.3d 293, 300 (N.H. 2010) (“Because the defendant has not developed his
constitutional arguments, we decline to address them.” (quoting State v.
Lott, 879 A.2d 1167, 1173 (N.H. 2005))); Arganbright v. State, 328 P.3d
1212, 1221 (Okla. Crim. App. 2014) (declining to address state
constitutional claim where not developed); Commonwealth v. Bond, 693
38
A.2d 220, 225 (Pa. Super. Ct. 1997) (“[A]lthough appellant argues that his
rights under both the United States and Pennsylvania Constitutions have
been violated, he has [not] . . . explained how the Pennsylvania
Constitution differs from the protection afforded by the United States
Constitution. Instead, appellant merely ‘clumps’ his constitutional
arguments together and expects this Court to create a state constitutional
argument on his behalf. This we decline to do.”); Martins v. State, 52
S.W.3d 459, 469 (Tex. App. 2001) (“We first observe that appellant has not
briefed his claim regarding his state constitutional rights separately from
his claim regarding his federal constitutional rights, nor has he provided
any rationale for construing the Texas Constitution more broadly than the
U.S. Constitution. He has thus forfeited error on his state ground and we
do not address his third issue.”); State v. Sieyes, 225 P.3d 995, 1004
(Wash. 2010) (en banc) (declining to address state constitutional claim
where inadequately briefed).
The briefing requirement in our rules of appellate procedure is “not
intended to be legal bramble bush that serve[s] no purpose other than
ensnaring unwitting litigants.” State v. Tidwell, No. 13-0180, 2013 WL
6405367, at *2 (lowa Ct. App. Dec. 5, 2013). Instead, it is intended to
ensure our appellate courts have the full benefit of the parties’ analysis
and thoughts on the legal issues presented. This is particularly important
with respect to claims arising under the Iowa Constitution. The Iowa
Constitution is the supreme law of this state, but it became a litigation
afterthought following federal incorporation of the Bill of Rights into the
Fourteenth Amendment. In recent years, however, this court, like many
other courts, has expressed an interest in returning to first principles and
developing state constitutional law independent of federal constitutional
law. Admittedly, there have been and will continue to be doctrinal
39
stumbles along the way as we continue to retrain our atrophied state-
constitutional-law muscles, but that is exactly why litigants must brief
these critically important issues. As the Utah Supreme Court explained:
As with most legal arguments, there is no magic formula for
an adequate state constitutional analysis. Arguments based,
for example, on historical context, the constitution’s text,
public policy, or persuasive authority would all meet our
briefing requirements. But cursory references to the state
constitution within arguments otherwise dedicated to a
federal constitutional claim are inadequate. When parties fail
to direct their argument to the state constitutional issue, our
ability to formulate an independent body of state
constitutional law is compromised. Inadequate briefing
denies our fledgling state constitutional analysis the full
benefit of the interested parties’ thoughts on these important
issues.
State v. Worwood, 164 P.3d 397, 405 (Utah 2007).
For these reasons, I would hold Doss forfeited his claims arising
under the Iowa Constitution.
Oxley, J., joins this special concurrence.