Gene Duwayne Cook, Jr. v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 17-1245
Filed February 20, 2019
GENE DUWAYNE COOK, JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William Patrick Kelly,
Judge.
Gene Cook appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Bower, P.J., McDonald, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
CARR, Senior Judge.
Gene Cook Jr. appeals from the district court’s denial of his application for
postconviction relief (PCR). He argues his sentence is cruel and unusual due to
gross disproportionality and his age, and he asserts his other claims are not time-
barred under recent precedent. We find his sentence is constitutional and his other
claims are time-barred even considering recent precedent. Therefore, we affirm.
I. Background Facts and Proceedings
Cook was born in September 1982. On October 30, 2003, Cook was found
guilty following a bench trial of five counts of lascivious acts with a child—a class
“D” felony—occurring in September, October, and November 2002. See Iowa
Code § 709.8 (2002). Prior to trial, he stipulated he had two prior convictions for
sexually predatory offenses in Iowa, specifically indecent exposure.1 See id.§ 709.9. On December 4, 2003, the district court applied the enhanced sentencing
under Iowa Code section 901A.2 and sentenced him to terms of incarceration not
to exceed twenty-five years on each count of lascivious acts with a child, with the
sentences on two counts run consecutively and all other sentences run
concurrently for a total term of incarceration not to exceed fifty years.2 Consistent
with Iowa Code section 901A.2(3), he was required to serve at least 85% of his
sentences. We affirmed his convictions and sentences on direct appeal in State
1
Cook testified he was seventeen and eighteen years old when he committed the prior
offenses.
2
Prior to trial, Cook pled guilty to failure to register as a sex offender. See Iowa Code
§§ 962A.5, .7(1). The court sentenced him to a term of incarceration not to exceed two
years on the count, run concurrently with his sentences for the five counts of lascivious
acts with a child.
3
v. Cook, No. 03-1992, 2005 WL 291546, at *2 (Iowa Ct. App. Feb. 9, 2005).
Procedendo issued March 10, 2005.
Cook filed his first application for PCR on June 16, 2005. The district court
denied his application, and we affirmed the denial in Cook v. State, No. 10-1877,
2012 WL 1453978, at *1 (Iowa Ct. App. Apr. 25, 2012). Procedendo on his first
application issued May 29, 2012. He filed his second application for PCR on
November 6, 2012. The district court dismissed his second application on
November 1, 2013, and he did not appeal. He filed this application for PCR, his
third, on April 7, 2016. In separate rulings, the district court found his sentence
was not cruel and unusual or otherwise unconstitutional and his other claims were
time-barred. The court ultimately denied his application on July 21, 2017. He now
appeals.
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In order to succeed on a claim of
ineffective assistance of counsel, a defendant must prove: (1) counsel failed to
perform an essential duty; and (2) prejudice resulted.” Id. The defendant must
prove both prongs by a preponderance of the evidence. Id. at 196.
III. Grossly Disproportionate
Cook argues his sentence is grossly disproportionate to his crimes under
the Eighth Amendment to the United States Constitution and Article 1, Section 17
of the Iowa Constitution. See State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009)
(citing Solem v. Helm, 463 U.S. 277, 292 (1983)).
4
In evaluating whether a lengthy sentence is grossly
disproportionate under the Cruel and Unusual Punishment Clause,
the Supreme Court has developed a three-part test. The first part of
the test, sometimes referred to as the threshold test, involves a
preliminary judicial evaluation of whether the sentence being
reviewed is grossly disproportionate to the underlying crime. This
preliminary test involves a balancing of the gravity of the crime
against the severity of the sentence. The Supreme Court has not
articulated what factors go into this initial determination, but has
stated that it is a rare case in which a threshold comparison of the
crime committed and the sentence imposed leads to an inference of
gross disproportionality.
If the threshold test has been crossed, the Supreme Court
proceeds to steps two and three. In step two, the Supreme Court
engages in intrajurisdictional analysis, comparing the challenged
sentence to sentences for other crimes within the jurisdiction. In step
three, the Supreme Court engages in interjurisdictional review,
comparing sentences in other jurisdictions for the same or similar
crimes. These last two steps introduce objectivity into the
determination of gross disproportionality.
Id. (internal citations and quotation marks omitted).
We begin our analysis with the threshold test of “balancing of the gravity of
the crime against the severity of the sentence.” Id. This test “requires a
comparison between a defendant’s sentence and his particular crime.” State v.
Oliver, 812 N.W.2d 636, 648 (Iowa 2012). In Bruegger, our supreme court
identified three factors of gross disproportionality:
[(1)] a broadly framed crime, [(2)] the permissible use of preteen
juvenile adjudications as prior convictions to enhance the crime, and
[(3)] a dramatic sentence enhancement for repeat offenders. Each
of these factors, standing alone, has the potential of introducing a
degree of disproportionality into a sentence, but the convergence of
these three factors presents a substantial risk that the sentence
could be grossly disproportionate as applied.
773 N.W.2d at 884.
As to the breadth of crime, Cook asserts “[l]ascivious acts with a child covers
a variety of conduct, from mere verbal solicitation of a sex act to the more
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objectionable acts of fondling or inflicting pain upon a child.” We do not believe
verbal solicitation constitutes a “mere” offense, but we agree the crime of lascivious
acts with a child encompasses a range of conduct.3 See Iowa Code § 709.8.
However, our supreme court has found it sufficient to look at the specific facts and
circumstances of the defendant’s conduct to determine whether “[t]his is the type
of” conduct the statute “was designed to prevent,” versus “conduct that was
inadvertently caught by a broadly written statute.” Oliver, 812 N.W.2d at 651–52.
While the court in Bruegger found the breadth of crime to be an important factor,
the court ultimately vacated and remanded the sentence because “the record is
limited regarding the underlying facts and circumstances of this offense.” 773
N.W.2d at 885–86. By contrast, the record here clearly sets out the underlying,
serious facts and circumstances of Cook’s criminal interactions with five separate
minor victims, as reflected in the initial trial court’s findings:
In each of the instances described by the victims, the defendant
made specific (and at times, repeated) requests for an activity
understood by the victims to be sexual in nature and wholly
inappropriate under the circumstances.[4] On each of these
occasions, he followed the victims until they walked, ran or bicycled
away. In the case of [W.], the defendant made physical contact with
3
Iowa Code section 709.8, which criminalizes lascivious acts with a child, stated at the
time:
It is unlawful for any person eighteen years of age or older to
perform any of the following acts with a child with or without the child’s
consent unless married to each other, for the purpose of arousing or
satisfying the sexual desires of either of them:
1. Fondle or touch the pubes or genitals of a child.
2. Permit or cause a child to fondle or touch the person’s genitals
or pubes.
3. Solicit a child to engage in a sex act or solicit a person to arrange
a sex act with a child.
4. Inflict pain or discomfort upon a child or permit a child to inflict
pain or discomfort on the person.
4
The victims, all under the age of fourteen, testified Cook asked them to “give him a blow
job,” give “head,” or “suck dick.”
6
her and verbally abused her.[5] In the case of [I.] and [K.], he actually
exposed himself to them. There can be no doubt that the defendant’s
actions and statements directed to each of these girls were anything
but “idle chatter or made in jest.”
We conclude the statute clearly encompasses Cook’s conduct and raises no
inference of disproportionality.
As to the use of preteen juvenile adjudications, the court in Bruegger
questioned whether “the act of a twelve-year-old is a sufficient basis to dramatically
enhance an adult sentence.” 773 N.W.2d at 885. No such concern is present
here. While Cook correctly notes he committed one of his prior offenses when he
was seventeen and still a juvenile, this is not a preteen adjudication. Furthermore,
he committed his other prior offense when he was eighteen and no longer a
juvenile. This single adult conviction of a sexually predatory offense—committed
about two years prior to the offenses at issue—is sufficient to trigger the sentencing
enhancement. See Iowa Code section 901A.2(3) (“[A] person convicted of a
sexually predatory offense which is a felony, who has a prior conviction for a
sexually predatory offense, shall be sentenced to and shall serve twice the
maximum period of incarceration for the offense, or twenty-five years, whichever
is greater . . . .”).
As to the dramatic sentence enhancement, the court in Bruegger found the
enhancement under section 901A.2(3) was a “geometric increase” that weighed
toward finding a cruel and unusual punishment. See 773 N.W.2d at 885 (noting
that Bruegger, if sentenced without the enhancement to the maximum term of
incarceration of ten years, would likely only serve about four years after earning
5
W. testified Cook called her a “bitch.”
7
various credits). Because Cook would face a maximum term of incarceration of
five years on each count without the enhancement, the increase is even more
dramatic here. See Iowa Code § 902.9(5) (imposing a maximum term of
incarceration of five years for a class “D” felony). However, we note that only two
of Cook’s five sentences for lascivious acts with a child were run consecutively;
the enhancement here is much less dramatic when comparing the sentence Cook
actually received to potentially five unenhanced sentences run consecutively.
Under the Bruegger factors, only the dramatic sentencing enhancement
weighs toward finding Cook’s sentence is cruel and unusual. See 773 N.W.2d at
885. We find the enhancement does not alone pass the threshold of
disproportionality. See id. at 884. Nor do the other Bruegger factors converge to
generate a high risk of potential gross disproportionality. See id. Cook’s
sentencing enhancement does not rely on preteen juvenile adjudications, and the
facts and circumstances underlying his offenses are clearly encompassed within
the statute. Therefore, this is not the “rare case” that passes the balancing
threshold and we do not find his sentence is grossly disproportionate. See id.IV. Mandatory Minimum Sentences for Offenders under Age
Twenty-One
Our supreme court has held “all mandatory minimum sentences of
imprisonment for youthful offenders are unconstitutional under the cruel and
unusual punishment clause.” State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014).
Cook asks us to extend this holding to all persons under the age of twenty-one.
However, our supreme court explicitly limited its holding to juveniles. Id. at 403(“[O]ur holding today has no application to sentencing laws affecting adult
8
offenders.”). Our supreme court has not extended juvenile sentencing protections
to adult offenders, and we also decline to do so. Therefore, the constitutional
prohibition on mandatory minimum sentences for juvenile offenders does not affect
Cook as an adult offender.
V. Statute of Limitations for PCR Claims
Ordinarily, a person must file an application for PCR “within three years from
the date the conviction or decision is final or, in the event of an appeal, from the
date the writ of procedendo is issued.” Iowa Code § 822.3; but see Veal v. State,
779 N.W.2d 63, 65 (Iowa 2010) (finding the three-year statute of limitations on
PCR actions does not apply to a claim the sentence is illegal). Cook’s current
application for PCR contains allegations his previous PCR counsel was ineffective
for failing to raise certain claims. Because procedendo issued on his direct appeal
March 10, 2005, and he filed this application for PCR on April 7, 2016, the district
court dismissed these claims for being filed beyond the three-year statute of
limitations. Cook asks us to extend the statute of limitations for claims prior PCR
counsel was ineffective.
After the parties submitted their briefs to us, our supreme court decided
Allison v. State, 914 N.W.2d 866 (Iowa 2018). In Allison, the court created an
exception to the statute of limitations:
[W]here a PCR petition alleging ineffective assistance of trial counsel
has been timely filed per section 822.3 and there is a successive
PCR petition alleging postconviction counsel was ineffective in
presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition for purposes of Iowa
Code section 822.3 if the successive PCR petition is filed promptly
after the conclusion of the first PCR action.
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Id. at 891. However, this narrow exception cannot help Cook. This is his third—
not second—application for PCR. While this current application focuses on the
claimed mistakes of his second PCR counsel, his first PCR counsel was able to
pursue the same claims. This third application has not been “filed promptly,” as
the term is commonly understood.6 He filed this application more than forty-six
months after the conclusion of his first PCR action and more than twenty-nine
months after the conclusion of his second PCR action.7 Therefore, even applying
the rule announced in Allison, Cook’s application is untimely. See id.VI. Conclusion
Cook’s sentence is not cruel and unusual punishment when considering
either the proportionality to his conduct or his age. Additionally, his other claims
that his PCR counsel was ineffective are time barred.
AFFIRMED.
6
The dictionary defines “promptly” as “in a prompt manner; at once; immediately, quickly.”
Webster’s Third New International Dictionary 1816 (unabr. ed. 2002).
7
Allison references, but does not adopt, a tolling variant where the three-year statute of
limitations is tolled during an active PCR claim. See 914 N.W.2d at 891. Cook’s PCR
claim is untimely even under this variant as more than three years has passed between
procedendo on his direct appeal and filing his first PCR, procedendo on his first PCR and
filing his second PCR, and the conclusion of his second PCR and filing his third PCR.