IN THE COURT OF APPEALS OF IOWA
No. 15-1561
Filed August 17, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALEXANDER BARILLAS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Richard D. Stochl,
Judge.
A criminal defendant appeals his conviction and sentence following his
guilty plea to assault with intent to commit sexual abuse. AFFIRMED.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee State.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
2
POTTERFIELD, Presiding Judge.
Alexander Barillas appeals his conviction and sentence after pleading
guilty to assault with intent to commit sexual abuse. He argues the district court
abused its discretion in sentencing him to five years in prison, and his trial
counsel was ineffective for allowing him to enter a guilty plea without fully
understanding the terms of the agreement and thereafter failing to file a motion in
arrest of judgment to set aside the plea. We find no merit in Barillas’s claim of
ineffective assistance of counsel and no abuse of discretion in the sentence
imposed, and therefore affirm.
I. Background Facts and Proceedings
On March 31, 2014, a woman alleged Barillas had forcibly engaged in
anal sexual intercourse with her after she repeatedly told him “no.” Before
Barillas was charged or arrested, he was interviewed by law enforcement and
admitted to many specific facts regarding the crime.1 During the interview,
Barillas explained he and the woman had previously been in a relationship and
continued meeting for purposes of sexual intercourse after the relationship
ended. He also told the interviewer he had, on multiple occasions in the past,
asked the woman to consent to anal intercourse, but that she never agreed to do
so. Barillas initially denied he had done anything wrong and stated he and the
1
Barillas filed a motion to suppress the statements he made during the taped interview.
The district court denied the motion after finding the interview was non-custodial in
nature and Barillas’s participation in it was voluntary. The district court noted Barillas
drove himself to the police station, agreed to take part in the interview, was never
handcuffed or restrained in any manner, sat next to an open door during the interview,
and was repeatedly told he was not under arrest and was free to leave.
3
woman had engaged in consensual anal intercourse after the woman agreed to
try it for the first time.
However, after the interviewer challenged various aspects of Barillas’s
account, Barillas admitted the woman told him “no” several times on the night in
question, and he forcibly engaged in anal intercourse with her anyway because
he figured he “could persuade her to like it” by starting without her permission
and showing her it was pleasurable. He also admitted the woman stopped the
encounter by pushing him away and leaving. Finally, Barillas admitted sending
the woman a text message the next day that read, “I’m sorry, you deserved it,”
although he insisted he sent the message as a joke. He ultimately conceded
what he did to the woman was a mistake.
Barillas was charged by trial information with the crime of sexual abuse in
the third degree, a class “C” felony, in violation of Iowa Code section 709.4(1)
(2013). Pursuant to a plea agreement Barillas entered into with the State, the
charge was later amended to assault with intent to commit sexual abuse, a class
“D” felony, in violation of Iowa Code section 709.11. In addition to the charging
concession, the plea agreement provided that, in exchange for Barillas’s plea of
guilty, the State’s sentencing recommendation would reflect the findings and
recommendations of Barillas’s presentence investigation report (PSI). Barillas
was free to ask the district court for whatever sentence he wished.
When Barillas formally entered his plea of guilty in court, his attorney
explained the State had “agreed that there would be a presentence investigation
and that they would be recommending to the court, or concurring with, the
recommendation of the presentence investigative report. We’ll obviously be
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asking for whatever sentence we feel is appropriate in the applicable statute, up
to and including a deferred [sentence].” At the same hearing, the district court
asked Barillas if he understood that by pleading guilty, he faced a potential
sentence of five years in prison. Barillas told the court he understood.
The PSI prepared in anticipation of Barillas’s sentencing hearing
recommended a five-year prison sentence. The PSI noted Barillas’s refusal to
accept responsibility for his actions, as evidenced by the way his account of the
incident vacillated. After having admitted his crime during the interview with law
enforcement, Barillas made contrary statements to a department of correctional
services psychologist. The PSI states, “[Barillas] reports that no one was hurt
from his actions, he made a mistake and the allegations were exaggerated.
[Barillas] also indicated the victim was a willing participant who was curious, liked
and wanted the sexual contact that occurred.” The PSI also states:
According to [Barillas], the victim came to his house “every
night” and they engaged in consensual intercourse. He asked her
to try something different, she didn’t like it and went to the police.
[Barillas] indicated that while at the police station things got
confused and he said things happened that did not really occur.
[Barillas] does not feel the charges are fair and that law
enforcement did not complete the investigation correctly. He felt
like he was ‘interrogated like a terrorist.’ [Barillas] stated he likes to
help people, he hasn’t done anything wrong and was stabbed in the
back.
Finally, the PSI notes Barillas’s belief he would receive a deferred judgment
without probation supervision, even though neither his attorney nor the county
attorney had agreed to such a disposition. According to the PSI, Barillas was
informed a deferred judgment was not a foregone conclusion but “could be an
option,” and not having probation supervision was unlikely.
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At Barillas’s sentencing hearing,2 the district court heard victim impact
statements from the woman Barillas assaulted and her husband, testimony from
two department of correctional services employees—a staff psychologist and a
parole officer—and a brief statement from Barillas himself. The State
recommended a five-year prison sentence, in line with the sentencing
recommendation contained in Barillas’s PSI report. Barillas requested a deferred
judgment. The district court ruled as follows from the bench:
Mr. Barillas, . . . [after] being told no, you forcibly anally
raped a woman. And after you left her—or after she left your home,
you texted her [and] said, “Sorry, you deserved it.” I believe that
was your attitude that day and I don’t believe your attitude has
changed that much.
It is the sentence of this court that you are sentenced to an
indeterminate term of incarceration not exceed five years. . . . You
are also sentenced to a special sentence of ten years of parole
following your release from prison pursuant to the provisions of
Iowa Code section 903B. You are also ordered to complete sex
offender treatment and you’ll be required to register as a sex
offender in the state of Iowa.
....
The reason for my sentence is the defendant’s age, most
specifically the nature of his acts, including the force and his
attitude about that act afterwards. I have not put much weight in
the . . . psychosexual evaluations. I’ve considered some parts of
the PSI but not all of them.
Barillas appeals.
II. Standard of Review
When a district court’s sentence is within the statutory limits, we review its
sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). “An abuse of discretion will not be found unless we are able to
2
The sentencing hearing took place on two separate days—June 30, 2015, and
September 15, 2015—to allow Barillas the opportunity to present evidence related to the
psychosexual evaluation completed as a part of the PSI process.
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discern that the decision was exercised on grounds or for reasons that were
clearly untenable or unreasonable.” State v. Formaro, 638 N.W.2d 720, 724
(Iowa 2002).
We may decide ineffective-assistance-of-counsel claims on direct appeal if
we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.
This is our standard because such claims have their basis in the Sixth
Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,
494 (Iowa 2012).
III. Analysis
Barillas argues the district court abused its discretion by sentencing him to
prison instead of granting him either a suspended sentence or a deferred
judgment because those other options would have better served the dual
purposes of providing the maximum opportunity for rehabilitation while also
providing protection to the community from further offenses. See Iowa Code
§ 901.5. According to Barillas, the court’s sentence was overly punitive, given
the nature of the crime and his lack of prior criminal offenses. We disagree.
“[T]he decision of the district court to impose a particular sentence within the
statutory limits is cloaked with a strong presumption in its favor,” and the choice
of one sentencing option over another does not necessarily constitute error.
Formaro, 638 N.W.2d at 724–25. The very nature of the sentencing process
grants the district court discretion in choosing between sentencing options, and
the court in this case did not abuse its discretion by making a reasoned decision
to refuse Barillas the leniency for which he hoped.
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Barillas also argues he did not fully understand the ramifications of the
plea agreement he entered into with the State—he believed the State would be
recommending a deferred judgment—and his counsel was therefore ineffective
for allowing him to enter into the plea agreement and for thereafter failing to file a
motion in arrest of judgment seeking to have his guilty plea set aside.
In order to prevail on his claim of ineffective assistance of counsel, Barillas
must establish both that “(1) his trial counsel failed to perform an essential duty,
and (2) this failure resulted in prejudice.” Straw, 709 N.W.2d at 133 (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Both elements must be
proved by a preponderance of the evidence. Id. In order to prove prejudice,
Barillas “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of this appeal, Barillas “must show
that there is a reasonable probability, but for counsel’s errors, he . . . would not
have pleaded guilty and would have insisted on going to trial.” Straw, 709
N.W.2d at 138. If we find that prejudice is lacking, we may decide his claim on
that ground alone without addressing his counsel’s performance. Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001).
Assuming without deciding Barillas was, in fact, misled about the sentence
the State would be recommending to the district court—not just overconfident he
would receive a recommendation of a deferred judgment rather than the
maximum five-year prison sentence—we find he has failed to show that there is a
reasonable probability he would have made a different decision if he had not
been mistaken. Barillas avers he would not have accepted the plea deal and
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would instead have taken the case to trial had he known the State would not
recommend a deferred judgment. In support of his contention, Barillas cites
several factors he believes would have been favorable to him at trial, including
the eight-day gap between the incident and the woman’s report to the police, the
lack of physical evidence, and the ongoing sexual relationship he had with the
woman.
But Barillas cannot establish prejudice simply by asserting he would have
taken his case to trial; his assertions must be judged in the context of the
strength of the State’s case and the advantages gained by entering into the plea
agreement. See State v. Hallcok, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009)
(discussing the advantages gained through the plea agreement); Boschert v.
State, No. 13-0009, 2013 WL 6405468, at *4 (Iowa Ct. App. Dec. 5, 2013)
(discussing the advantages gained through the plea agreement and the strength
of the State’s case). While we recognize the difficulty of Barillas’s task in
meeting his burden of proof, we are left unconvinced by Barillas’s claim after
consideration of these additional factors. We cannot ignore the obvious benefit
he derived from his guilty plea—it resulted in his charge being downgraded from
a class “C” felony to a class “D” felony. The amended charge lessened Barillas’s
potential ten-year maximum prison sentence to a five-year maximum and a
lifetime special sentence to a ten-year special sentence. See Iowa Code
§§ 902.9(4), (5), 903B.1, 903B.2. Given the benefit it provided him, we believe it
unlikely Barillas would have rejected the plea agreement.
Our assessment of the strength of the State’s case against Barillas also
weighs against his statement he would have proceeded to trial. Barillas was
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recorded admitting to law enforcement he had forcibly engaged in anal
intercourse with a woman who had repeatedly told him “no” because he believed
he could make her like it. It was therefore highly probable Barillas would be
found guilty of sexual assault in the third degree. See id. § 709.4(1) (stating a
person commits the offense by performing a sex act “by force or against the will
of the other person”). The plea agreement he entered into allowed him to be
sentenced under a more forgiving statutory framework. Barillas’s claim he would
have gone to trial on the more serious charge is not convincing under the
circumstances, and as a result, we find he cannot establish the prejudice
necessary to prevail on his claim of ineffective assistance of counsel.
AFFIRMED.