State of Iowa v. Deantay Darelle Williams

IN THE COURT OF APPEALS OF IOWA

No. 18-2081
Filed February 3, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DEANTAY DARELLE WILLIAMS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.

A defendant appeals the judgments and sentences imposed for two counts

of sexual abuse following a jury trial and for one count of sexual abuse and one

count of possession of marijuana with intent to deliver following a guilty plea.

AFFIRMED.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
 2

TABOR, Judge.

Deantay Williams appeals four judgments and the overall sentence

imposed in two separate criminal cases. The first case involves two convictions

for sexual abuse in the third degree following a jury trial. The second case stems

from his guilty pleas to two more crimes—sexual abuse in the third degree and

possession of marijuana with intent to deliver—that Williams committed while free

on bail. Challenging the jury’s verdicts, Williams claims the State presented

insufficient proof the two fifteen-year-old witnesses were incapacitated under Iowa

Code section 709.1A (2012). Williams also alleges various errors or omissions by

his trial attorney and the sentencing judge. Meanwhile, the State seeks reversal

of the district court’s decision to merge four guilty verdicts into two counts for

sentencing.

Despite some inconsistency between the witnesses’ contemporaneous

reports and their trial testimony, we find substantial evidence supports the jury’s

verdicts. We reject Williams’s claims that his attorney was remiss in not moving to

suppress under Iowa Code section 232.11 and in not objecting to the State’s

alleged breach of the plea agreement. But his claim that counsel was ineffective

in letting him plead guilty without warning of the potential for consecutive

sentences would be better litigated in a possible postconviction-relief (PCR) action.

As for his other complaints on sentencing, we find the district court considered

appropriate factors. Finally, because the State did not cross-appeal or otherwise

seek appellate review of the merger rulings, we decline to consider those

arguments. Finding no ground for reversal, we affirm the judgments and

sentences.
 3

I. Facts and Prior Proceedings

Because Williams pursued a pretrial appeal, almost nine years have passed

since L.M. and J.K., then both fifteen years old, reported being sexually assaulted

by several young men. See State v. Williams, 895 N.W.2d 856, 867 (Iowa 2017)

(denying speedy indictment challenge).

In June 2012, Waterloo police responded to an early morning dispatch

reporting a possible rape. Officers found L.M. in Gates Park. She appeared

“groggy” and “lethargic.” L.M. told police she attended a party at a nearby house.

Other partygoers plied L.M. and her friend, J.K., with liquor. L.M. was wearing only

one shoe and left her leggings behind when she fled the basement of that house.

And prompting immediate concern, L.M. said her friend J.K. was still there. Police

raided the house and located J.K. in the basement. While locating J.K., officers

noticed several mattresses on the basement floor, as well as used condoms and

condom wrappers. They also found L.M.’s sandal, a book bag, and a purse.

Officers took both girls to the hospital to be examined.

The night’s traumatic end followed a day of “hanging out” with friends. L.M.

and J.K. had been walking down Adams Street, when J.K.’s friend, Taevon

Washington, called to her from Cordarell Smith’s house. The girls stopped to talk.

Smith offered them a bottle of liquor. Without knowing what kind of alcohol was

inside, both girls started drinking. The group moved to a larger gathering at a

house on Almond Street. There, about thirty guests passed around bottles of

liquor. The girls continued drinking.

Later, the girls went for food at a nearby McDonald’s. Then they returned

to the Adams Street house and continued partying in the backyard. Eventually the
 4

girls lost each other in the crowd. J.K. went downstairs with Eric Webster. L.M.

stayed in the yard, chatting with Williams for upwards of half an hour. Their

conversation ended when another partygoer told L.M. that J.K. was in the

basement and wanted to speak to her. L.M. went inside looking for J.K. She

testified Smith was standing behind her at the top of the stairs. He was “like butting

[her] down the stairs” and “pushing his body against [hers]” to propel her down the

stairs. Once in the basement, L.M. saw two mattresses on the floor about a foot

apart. She saw J.K. having sex with Webster on one mattress. Because L.M. had

seen J.K. and Webster acting friendly earlier that night, she was not surprised to

find them having sex. L.M. said it looked like “regular sex.”

L.M. testified she approached J.K. to ask if she needed anything. Before

receiving an answer, L.M. was pushed onto the other mattress. She recalled Smith

ripping off her leggings and underwear. Williams, Washington, and Smith then

took turns performing vaginal sex while L.M. tried to push them away and yelled

for them to stop. At one point, someone held her down while Smith assaulted her.

Afraid for her own life, L.M. “wanted to get out of there.” She sensed an

opening when Williams, Smith, and Washington left her and surrounded J.K. on

the other mattress. L.M. grabbed her phone and fled the house. She ran to the

park where she called her friend Tyrone, whose mother contacted police. During

their call, L.M. told Tyrone she took some pills, passed out, and awoke to being

raped. When Tyrone found L.M. at the park, she looked “nervous and shaky.”

Tyrone spent five to ten minutes with her until police took over.

One of those officers, Andrew Naumann, talked to L.M. in the back of his

squad car. L.M. told Naumann she “drank from a bottle of Hennessy and passed
 5

out.” She suspected there was some kind of drug in the bottle. The officer

testified: “She told me that because she doesn’t remember falling asleep.” L.M.

also said that three men had assaulted her. Another officer testified that L.M. said

she “had been laced,” meaning someone had given her drugs without her

knowledge. And of most urgency, L.M. told the officers J.K. was still in the house,

prompting a raid.

Officers found J.K. sitting on a mattress in the basement, her arms wrapped

around her knees, her head down. She appeared “[f]rightened. Not sure what

was going on. Disoriented, dazed, confused, crying, tears in her eyes.” She

asked: “Where is my friend at, I don’t remember what happened, and I don’t know

where I’m at.”

J.K.’s testimony, more than six years later, was slightly different. She

testified the night of the Adams Street party was the first time she had been

intoxicated. She said she “felt weird. Felt sick. Dizzy.” She did not know what

kind of alcohol she drank, only that it was clear liquid in a bottle. She also smoked

marijuana that night. J.K. recalled attending the gatherings on Almond Street and

Adams Street. But she could not remember going to McDonald’s. She testified: “I

think I was just drunk. I don’t remember.” Standing outside the Adams Street

house, she felt dizzy and light-headed and took some acetaminophen that

Washington handed her.

Later, J.K. lost track of L.M. and searched for her in the crowd outside the

house. Eventually, J.K. went inside to use the bathroom. On her way out, Webster

told her L.M. was downstairs, so she followed him to the basement. The basement

was dark, and she heard a sound like someone crying. J.K. wondered if it was
 6

L.M., but then she was “getting pushed around, onto the bed.” J.K. testified that

several males, including Williams, performed sex acts against her while she told

them to stop. The prosecutor asked, “Did you feel as though you could have got

away at that point?” J.K. responded, “No,” and explained she “[c]ouldn’t even

function.” She felt “helpless” like she could “do nothing” for herself. J.K. also

testified she did not recall L.M. approaching her while Webster was on top of her.

At the hospital, two sexual-assault nurses examined L.M. and J.K. and

administered rape kits. The nurse who examined J.K. said “her behavior was

controlled and quiet but . . . sleepy.” J.K. told the nurse that she was hanging out

with her friend and had a headache. “Someone gave her some pills, and she fell

asleep, awaking to someone on top of her.” J.K. identified that person as Smith.

J.K. gave the following account to the nurse: “[S]he describes her surrounding as

a bed in the basement. She could hear her friend screaming but could not see

her. Someone was holding her arms, and the perpetrator was yelling at her . . . [t]o

shut the fuck up.” J.K. told the nurse she “started yelling get off of me.” J.K.

described the three men who assaulted her. J.K. also recalled passing out and

waking up some time later.

The nurse who examined L.M. testified that L.M. said Washington gave her

a clear liquid in a bottle to drink. L.M. described the men pulling off her leggings

and ripping her underwear followed by the three sex acts. She described crying

and telling them to stop. L.M. also reported she “briefly had a lapse of

consciousness.”

The girls also underwent toxicological testing several hours after leaving the

house. L.M. had a blood alcohol content (BAC) of 0.114, well over the legal limit
 7

for driving. J.K.’s BAC was 0.025; she also had marijuana and acetaminophen in

her system. The toxicology reports did not show that either girl tested positive for

a “date rape” drug, according to the lead investigator.

Before their raid, police stopped Williams as he left the Adams Street house.

He agreed to an interview, waived his Miranda rights, and submitted to a DNA test.

Williams initially denied knowing the girls were in the basement. But eventually he

admitted performing sex acts on both of them, insisting it was consensual. The

Division of Criminal Investigation (DCI) later matched his DNA profile with samples

found at the scene and in the girls’ rape kits. The State called DCI criminalist

Michael Schmit to testify about those findings. Schmit explained that the lab

confirmed seminal fluid and DNA from several sources, including Williams, on the

girls’ bodies and clothing, as well as on condoms collected from the basement.

Police apprehended Williams and co-defendants, Washington and Smith,

in October 2013. The State charged Williams with kidnapping in the first degree,

two counts of sexual abuse in the second degree, and two counts of sexual abuse

in the third degree. What followed was a complicated procedural history. Williams

moved to dismiss the case, alleging the State violated his right to a speedy

indictment. When he was unsuccessful, he applied for discretionary review. Our

court reversed. State v. Williams, No. 14-1793, 2016 WL 146197, at *4 (Iowa Ct.

App. Jan. 13, 2016). The State sought further review. Overruling precedent, our

supreme court held the State did not violate Williams’s right to a speedy indictment

and remanded. Williams, 895 N.W.2d at 867.

While Williams was free on bond following this court’s decision, he acquired

two new felony charges: sexual abuse in the third degree, in violation of Iowa Code
 8

section 709.4(1)(b)(3)(d) and possession of marijuana with intent to deliver, in

violation of section 124.401(1)(d). With those new matters pending, the original

prosecution of co-defendants Williams, Washington, and Smith went to trial in

September 2018, more than five years after the events. At the close of trial, the

jury considered six charges against Williams and returned the following verdicts:

Charge Victim Verdict
Count I1 Kidnapping first degree L.M. Sexual abuse third
(general verdict--against
the will and incapacitated)
Count II Not submitted to jury
Count III Sexual abuse second J.K. Simple assault
(by force, aided and abetted
by one or more persons)
Count IV Conspiracy to commit L.M. Not guilty
sexual abuse second
Count V Conspiracy to commit J.K. Not guilty
sexual abuse second
Count VI Sexual abuse third L.M. Sexual abuse third
(incapacitation)
Count VII Sexual abuse third J.K. Sexual abuse third
(incapacitation)

After the jury trial, Williams pleaded guilty to the two new charges. He

offered those pleas in November 2018 and went on to sentencing in both cases.

At sentencing, the court merged Counts I and VI (involving L.M.), and Counts III

and VII, (involving J.K.). The district court sentenced Williams to three consecutive

ten-year terms (encompassing two counts of third-degree sexual abuse in the first

case and one count of third-degree sexual abuse and one count of possession

with intent in the second case). Williams appealed the judgments and sentence.2

1 Shading reflects subsequently merged convictions.
2 The supreme court stayed this case while it considered the applicability of
statutory changes relevant to criminal appeals. After resolving those issues, the
supreme court transferred this appeal to us.
 9

II. Scope and Standards of Review

We review a challenge to the sufficiency of the evidence for correction of

errors at law. State v. Keeton, 710 N.W.2d 531, 532 (Iowa 2006). We review

claims of ineffective assistance of counsel de novo. State v. Harrison, 914 N.W.2d

178, 18 (Iowa 2018). We often preserve such claims for PCR proceedings where

the applicant may develop supporting facts. State v. Thorndike, 860 N.W.2d 316,

319 (Iowa 2015). But we may resolve them on direct appeal if the record is

adequate.3 Id. We also review constitutional challenges to sentencing de novo.

State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015). Otherwise review of sentencing

is for an abuse of discretion. State v. Crooks, 911 N.W.2d 153, 161 (Iowa 2018).

III. Analysis

A. Sufficiency of the Evidence

Williams claims the record lacks adequate proof that he committed

third-degree sexual abuse (Counts VI and VII) while L.M. and J.K. were

incapacitated. See Iowa Code § 709.1(2) (defining sexual abuse as engaging in

a sex act with a person who is “suffering from a mental defect or incapacity which

precludes giving consent”); see also id. § 709.4(1)(d) (designating a sex act

3 In 2019, the Iowa legislature amended Iowa Code section 814.6 to prohibit most
appeals from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. That same
legislation amended section 814.7 to bar appellate courts from deciding claims of
ineffective assistance of counsel on direct appeal. See id. § 31. But our supreme
court decided these provisions did not apply to judgments entered before July 1,
2019. State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019). Because the court
entered judgment in November 2018, we may consider Williams’s
ineffective-assistance claims on direct appeal, if the record is adequate. See State
v. Kuhse, 937 N.W.2d 622, 627 (Iowa 2020). We may also consider his claims
arising from his guilty plea. See Macke, 933 N.W.2d at 228.
 10

performed while the other person is incapacitated as sexual abuse in the third

degree).4

We uphold guilty verdicts if they are supported by substantial evidence.

State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). Substantial evidence exists

when a rational trier of fact would be convinced the defendant is guilty beyond a

reasonable doubt. Id. In deciding whether a verdict is supported, we view all

relevant evidence in the light most favorable to the State. Id. Evidence is not

substantial if it raises only suspicion, speculation, or conjecture. State v. Howse,

875 N.W.2d 684, 688 (Iowa 2016).

We do not determine facts anew because it is “peculiarly the province of the

jury” to pass on such questions. State v. Lowenberg, 243 N.W. 538, 541 (Iowa

1932). “[T]he jury was free to believe or disbelieve the testimony of the witnesses

and to give as much weight to the evidence as, in its judgment, such evidence

should receive.” State v. Hunt, 801 N.W.2d 366, 377 (Iowa Ct. App. 2011). “The

very function of the jury is to sort out the evidence and place credibility where it

belongs.” Id.

4 In a decision predating the enactment of section 709.1A, our supreme court
explained that this definition of sexual abuse aimed to protect persons who could
not give “meaningful ‘consent.’” State v. Sullivan, 298 N.W.2d 267, 272 (Iowa
1980); see State v. Farnum, 554 N.W.2d 716, 721 (Iowa Ct App. 1996) (extending
term “incapacity” to “a person rendered unconscious from intoxication”); see also
State v. Lopez, No. 10-0766, 2012 WL 163232, at *3 (Iowa Ct. App. Jan. 19, 2012)
(noting “some overlap exists between the non-consent elements of third-degree
sexual abuse in sections 709.4(1) and 709.4(4)”).
 11

We start with the marshalling instructions. The court instructed the jury that

Williams was guilty of sexual abuse in the third degree if the State proved these

three elements:

1. On or about the 10th day of June, 2012, the defendant or
person(s) the defendant aided and abetted performed a sex act with
[L.M. for Count VI or J.K. for Count VII].
2. The sex act was performed while [L.M. or J.K.] was
mentally incapacitated, physically incapacitated or physically
helpless.
3. The defendant knew or reasonably should have known that
[L.M. or J.K.] was mentally incapacitated, physically incapacitated or
physically helpless.[5]

Another instruction defined the terms in the second element.6

“Mentally incapacitated” means that a person is temporarily
incapable of controlling the person’s own conduct due to the
influence of a narcotic, anesthetic, or intoxicating substance.
“Physically helpless” means that a person is unable to
communicate an unwillingness to act because the person is
unconscious, asleep, or otherwise physically limited.
“Physically incapacitated” means that a person has a bodily
impairment or handicap that substantially limits a person’s ability to
resist or flee.

Williams does not dispute that he performed sex acts on L.M. and J.K. On

appeal, he challenges the State’s proof of the first definition of incapacitation—that

the girls temporarily could not control their conduct because they were under the

5 Knowledge is not an element of sexual abuse in the third degree under Iowa
Code section 709.4(1)(d). The district court should not have included this
requirement when marshalling Count VI and Count VII. The uniform instruction no
longer lists this element. See Iowa Crim. Jury Instructions 900.3.3, cmt. (June
2019). But the State acknowledges these instructions as given are the law of the
case on appeal. See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (holding
when the defendant does not object to the instructions, “the jury instructions
become the law of the case for purposes of our review of the record for sufficiency
of the evidence.”).
6 These definitions roughly follow Iowa Code section 709.1A.
 12

influence of a narcotic, anesthetic, or intoxicating substance.7 He asserts both

witnesses changed their stories about being given pills, passing out, and waking

up during the assaults.8

True, both L.M. and J.K. offered testimony at trial inconsistent with their

statements just after the assaults. For instance, L.M. told officers and the nurse

who spoke with her that morning that she had been given pills, in addition to

alcohol. She told them she passed out and awoke to being sexually assaulted.

L.M. also told her friend, Tyrone, she had been drugged. J.K. shared a similar

version of events with the nurse who examined her.

By contrast, on the stand L.M. did not mention passing out. Instead, she

testified to being pushed down on the mattress and being aware of the assaults as

they were happening. When asked about the discrepancy between her initial belief

that she had been “laced” and her trial testimony that she was just drunk, she said,

“I just didn’t feel normal, and I didn’t know what alcohol feels like . . . .” She testified

7 In its appellee’s brief, the State asserts that in L.M.’s case the prosecution proved
she was either temporarily incapable of apprising or controlling her conduct due to
the influence of an intoxicating substance (under the definition of mentally
incapacitated) or had a bodily impairment that substantially limited her ability to
resist or flee (under the definition of physically incapacitated). See Iowa Code
§ 709.1A(1), (3). The State’s brief does not address the alternative of physically
helpless. See id. § 709.1A(2). We acknowledge our case law is not terribly precise
when discussing any distinctions and overlap among the three definitions of
incapacitation. See generally State v. Tovar, No. 16-1440, 2018 WL 6132269, at
*4–5 (Iowa Ct. App. Nov. 21, 2018) (discussing application of three alternatives).
8 Williams is especially critical of J.K.’s credibility. He points out that the jury found

he committed only simple assault against her in Count III, bypassing the greater
offenses of sexual abuse in the second and third degree. Williams sees the lesser
verdict as a sign the jury did not believe J.K.’s testimony that he used force or that
the perpetrators engaged in a “group effort.” From there, he contends J.K. is
incredible on the intoxication issue. We reject this contention. The jury was free
to accept or reject any of J.K.’s testimony. See State v. Shanahan, 712 N.W.2d
121, 135 (Iowa 2006).
 13

that she “felt like” she had been drugged. L.M. confirmed she drank “[a] lot” and

“throughout the night.” Indeed, when Tyrone and police met her at the park, she

was groggy, lethargic, and slurring her words. Measured several hours later, her

BAC was still over 0.10.

Likewise, J.K. testified to drinking heavily that night, though her BAC was

not high when tested the following morning. She described feeling weird, sick,

dizzy, and light-headed. She could not remember going for fast food. During the

assaults, she felt “helpless” and unable to get away. In her words, she couldn’t

“even function.” When police found her, she was frightened, disoriented, dazed,

and confused. She said she did not know where she was or what happened.

Whatever discrepancies existed between the girls’ contemporaneous

statements and their trial testimony were for the jurors to sort out. It is the jury’s

job to decide which evidence to credit and what weight to assign various aspects

of the State’s case. See Hunt, 801 N.W.2d at 377; Lowenberg, 243 N.W. at 541.

Williams emphasizes the girls’ toxicology reports did not show the presence

of a “date rape” drug.9 He also criticizes the girls’ testimony denying they told

anyone they had been drugged or passed out. But the jury could disregard those

protestations. The defense did not object to the admission of the girls’ statements

to the officers or the nurses reporting how they felt that morning. Thus, the jury

could rely on their earlier statements as substantive evidence of the crimes. See

9 In closing argument, the trial prosecutor emphasized the State was not alleging
the girls were drugged. And it is true, the State did not charge Williams under the
definition of sexual abuse alleging he performed a sex act “while the other person
[was] under the influence of a controlled substance, which may include but is not
limited to flunitrazepam” (which is another name for the date-rape drug Rohypnol).
See Iowa Code § 709.4(1)(c).
 14

State v. Russell, 893 N.W.2d 307, 316 (Iowa 2017) (“Prior statements of a witness

that are admissible as substantive evidence may be freely employed to impeach a

witness on direct examination.”); State v. Potter, No. 09-0579, 2010 WL 1875649,

at *4 (Iowa Ct. App. May 12, 2010) (finding jury could reasonably believe witness’s

later description of incident rather than version offered to investigator during earlier

interview). We resolve all reasonable inferences in favor of the verdicts. See State

v. Reed, 875 N.W.2d 693, 704 (Iowa 2016). The jury could reasonably assign

more credibility to the girls’ closer-in-time accounts given to law enforcement and

nurses than their in-court testimony five years after the incidents.

The record contains adequate evidence of intoxication by alcohol (or in

J.K.’s case a combination of alcohol and marijuana) to support the jury’s findings

of mental incapacitation or physical helplessness. The state of a victim’s

incapacitation “‘at any given moment is largely a question of fact.’” State v. Tapia,

751 N.W.2d 405, 407 (Iowa Ct. App. 2008) (quoting People v. Teicher, 422 N.E.2d

506, 511 (N.Y. 1981)) (discussing physical helplessness). The girls described

feeling intoxicated, helpless, and unable to function. Both testified that they felt

unable to leave. Evidence they had some level of awareness during the assaults

does not preclude the jury finding they were incapacitated. See id. (holding

defendant’s actions could not be “separated into segments” when deciding

whether the victim was physically helpless).

In sum, a reasonable jury could conclude the State proved beyond a

reasonable doubt that L.M. and J.K. were mentally incapacitated or physically
 15

helpless during the assaults. Taking the evidence in the light most favorable to the

State, substantial evidence supports the verdicts of third-degree sexual abuse.

B. Ineffective Assistance of Counsel

Williams next argues his trial attorney was constitutionally defective in

several ways. To prevail, he must prove by a preponderance of the evidence that

his attorney breached an essential duty resulting in actual prejudice. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Without adequate proof of

either duty or prejudice, the claim fails. See Thorndike, 860 N.W.2d at 320. On

the prejudice prong, Williams must show counsel’s mistake was so serious as to

deprive him of a fair trial. See Strickland, 466 U.S. at 687. It is not enough to show

the mistake could have conceivably influenced the trial’s outcome. Thorndike, 860

N.W.2d at 320. Rather, Williams must show that but for counsel’s omission, there

was a reasonable probability of acquittal. See id.

1. Motion to suppress interview and DNA test

Williams first argues counsel was remiss in not moving to suppress the

interview and DNA sample he gave police. At the time of the crime, Williams was

seventeen years old. Police seized him during the raid and took him to the station.

After waiving his Miranda rights, he spoke with detectives and agreed to give a

DNA sample before his release.

Williams premises his ineffective-assistance claim on the protections in

Iowa Code section 232.11. This statute provides children with a “right to be

represented by counsel” in juvenile proceedings. A child who is sixteen or older

can waive the right to counsel “only if a good faith effort has been made to notify

the child’s parent, guardian, or custodian” of the child’s location and the right to
 16

confer. Iowa Code § 232.11(2). These protections apply during “proceedings

within the jurisdiction of the juvenile court,” which includes “the time the child is

taken into custody for any alleged delinquent act that constitutes a serious or

aggravated misdemeanor or felony under the Iowa criminal code, and during any

questioning thereafter by a peace officer.” Id. § 232.11(1). And section 232.8(1)(c)

provides that violations by children sixteen years or older, “which

constitute . . . forcible felon[ies] are excluded from the jurisdiction of the juvenile

court.” “A ‘forcible felony’ is any felonious child endangerment, assault, murder,

sexual abuse, kidnapping, robbery, human trafficking, arson in the first degree, or

burglary in the first degree.” Iowa Code § 702.11 (2012).

Williams points to State v. Harris, 589 N.W.2d 239, 244 (Iowa 1999), which

held that a juvenile murder suspect’s waiver was valid because the officers made

a good-faith effort to locate his parents. But the Harris decision did not directly

determine the applicability of section 232.11. 589 N.W.2d at 244. In State v. Hajtic,

724 N.W.2d 449, 452 (Iowa 2006), the supreme court offered more discussion of

this statute. Hajtic faced charges for burglary and robbery. Hajtic, 724 N.W.2d at

452. Ultimately, he was convicted of three counts of third-degree burglary and one

count of first-degree robbery. Id. at 451. The court determined because Hajtic

was one month shy of his eighteenth birthday, “he was entitled to the protection of

our juvenile laws regarding his right to counsel in the burglary cases.” Id. at 452

(emphasis added). The court clarified in a parenthetical: “The robbery charge is a

forcible felony and, therefore, not subject to the juvenile code.” Id. The court then

found the police made a good-faith effort to notify Hajtic’s mother. Id. at 453. So

Hajtic applied the statute because the juvenile was being investigated for crimes
 17

that were not forcible felonies, but the court rejected the duty to notify the parents

for the forcible felony charge.

Here, police investigated seventeen-year-old Williams based on allegations

of kidnapping and sexual abuse, both forcible felonies. His questioning, therefore,

was not subject to section 232.11. Police had no obligation to locate his parent or

guardian before accepting a waiver of his Miranda rights. We conclude counsel

had no duty to move to suppress the interview and DNA test based on the

protections in section 232.11. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010) (“Counsel has no duty to raise an issue that has no merit.”).

2. Objection to alleged breach of plea agreement

Williams next challenges his attorney’s performance at sentencing. At the

hearing, the State first recommended consecutive sentences for the two

sexual-abuse convictions from the jury trial. Second, consistent with the plea

agreement, the State recommended concurrent sentences for his later offenses of

sexual abuse and marijuana possession with intent to deliver. Third, the State

asked for the sentences from the trial to be run consecutive to the concurrent

sentences from the plea agreement. That third proposal, according to Williams,

breached the plea agreement. So what did the plea agreement say about this

aspect of sentencing? Williams poses three possibilities: (1) the plea agreement

included an unstated term allowing the State to ask for the sentences in the two

cases to be run consecutively; (2) the agreement included an unstated term

prohibiting the State from making that request; or (3) the agreement did not

address the issue.
 18

Because Williams cannot point to a provision in the plea agreement barring

the State from seeking consecutive sentences, he cannot show the prosecutor

reneged on the bargain. Silence is not evidence of an agreement. And “[i]f the

State did not breach the plea agreement, defense counsel could not have been

ineffective.” State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008). This is not a case

in which the record is inadequate to address the issue. Rather, Williams has not

proven his claim of ineffective assistance of counsel.

3. Advice about possibility of consecutive sentences

Williams next contends the district court erred by failing to advise him at the

plea hearing that the yet-to-be-imposed sentences in the jury-trial case could be

run consecutive to the sentences in the guilty-plea case. Because Williams did not

challenge his guilty plea by moving in arrest of judgment, he must raise this claim

by alleging ineffective assistance of counsel.10 See State v. Brothern, 832 N.W.2d

187, 191 (Iowa 2013).

The State contends counsel had no duty to move in arrest of judgment

because Iowa Rule of Criminal Procedure 2.8(2)(d) only required the district court

to advise Williams of penalties related to the “offense to which the plea is offered.”

See State v. Carmer, No. 18-0674, 2019 WL 478520, at *1 (Iowa Ct. App. Feb. 6,

2019) (holding “maximum punishment” only related to offense at issue in the plea

10 The State argues we cannot reach this issue because new Iowa Code
section 814.29, effective July 1, 2019, bars challenges to guilty pleas on appeal
unless the defendant can prove it is “more likely than not [that he] would not have
pled guilty if the defect had not occurred.” Whether this amendment applies to
convictions entered before the effective date is pending in the supreme court. See
State v. Treptow, No. 19-1276. Applying the rationale of Macke, 933 N.W.2d at
228 and State v. Gordon, 943 N.W.2d 1, 5 (Iowa 2020), we assume the
amendment does not apply retroactively.
 19

proceeding); see also State v. Brammeier, No. 10-1157, 2011 WL 2556076, at *2

n.3 (Iowa Ct. App. June 29, 2011) (finding “no requirement that a defendant be

informed that the sentence being imposed will be served following a sentence the

defendant is already serving for a separate and prior crime”).

But Williams insists his case is governed by State v. White, 587 N.W.2d

240, 243 (Iowa 1998), where our supreme court held that an accused must be fully

aware of the possibility of consecutive sentences because they may be the direct

consequence of a guilty plea. He notes the district court set a combined

sentencing hearing for all four convictions just after he entered his guilty pleas.

What we don’t know on this record is what advice Williams received from

his attorney about the possibility of consecutive sentences. Because we do not

know whether Williams indeed had that information, we cannot fully assess his

claim. Thus we preserve the issue for further development and evaluation in PCR

proceedings. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (encouraging

preservation of ineffective-assistance claims).

C. Sentencing Considerations

1. Mitigating factors for juvenile offenders

Beyond his claims of ineffective assistance of counsel, Williams argues we

should set aside his sentence because the district court did not consider the

Miller/Lyle factors for sentencing juveniles.11 He cites Crooks for the proposition

that when sentencing a juvenile to prison time, even without a mandatory-minimum

11Our courts have sometimes called these the Miller/Lyle/Roby factors. See, e.g.,
State v. Majors, 940 N.W.2d 372, 384 (Iowa 2020); see also Miller v. Alabama,
567 U.S. 460, 477–78 (2012); State v. Roby, 897 N.W.2d 127, 135 (Iowa 2017);
State v. Lyle, 854 N.W.2d 378, 404 n.10 (Iowa 2014).
 20

sentence, the court must consider the Miller/Lyle factors. 911 N.W.2d at 153.

Those factors include:

(1) the age of the offender and the features of youthful behavior, such
as “immaturity, impetuosity, and failure to appreciate risks and
consequences”; (2) the particular “family and home environment”
that surround the youth; (3) the circumstances of the particular crime
and all circumstances relating to youth that may have played a role
in the commission of the crime; (4) the challenges for youthful
offenders in navigating through the criminal process; and (5) the
possibility of rehabilitation and the capacity for change.

Lyle, 854 N.W.2d at 404 n.10 (citations omitted).

Crooks held that once the court has decided not to impose a minimum

period of incarceration, the Miller/Lyle factors remain relevant to the other

sentencing options. 911 N.W.2d at 173. But “the court is not required to

specifically examine and apply each factor.” Id. These factors can mitigate a

sentence like any other relevant extenuating factors not related to youth. Id. The

appellate court can find an abuse of discretion if the sentencing court ignores a

relevant factor that it should have given significant weight. Id.

The sentencing hearing featured information about Williams’s youth. Both

defense counsel and the prosecutor noted his age at the time of the crime and the

difficulty of his circumstances when discussing mitigating factors. Considering

Williams’s youth, the court veered away from imposing a set sentence before he

was eligible for parole on the crimes tried by the jury: “First of all, there is no

mandatory minimum on these—on these offenses. The parole board will be able

to make a determination as to when you should be released.”
 21

The court then focused on the circumstances of the crimes and the impact

on the victims:

The court has specifically determined that the consecutive sentences
are appropriate given the fact that there were in the case in which
the jury found you guilty two victims who were greatly affected by
this. We heard the testimony of them at trial. This was although not
found by the jury to be by force, certainly a case in which these two
individuals were—were in a basement unable to leave where
multiple people were present. Multiple people engaged in sex acts
with them. Just the—the circumstances of that case make—make
the fact that these sentences should run consecutive appropriate.

Turning to the more recent crimes, the court considered Williams’s

recidivism and the danger posed by his conduct:

Regarding the new charge in which you pled guilty, you had
every opportunity to show that—that you could live without violating
the law, and instead, you picked up a new charge with another young
girl that was clearly—clearly illegal, and the court finds that given that
what you were facing, the fact that you were involved in a new crime
makes consecutive sentence in that case appropriate as well.
It is the court’s thought that, again, looking at what’s contained
in the presentence investigation report, the board of parole will be
able to look at this and make a determination as to when it will be
safe for you come back out on the streets. The court hopes that
that’s soon. But if by chance they find that you still haven’t figured
this out and still haven’t learned that you can’t be having sex with
young girls or in these kinds of situations you are a danger, and until
you get that through your head that that isn’t appropriate, and
therefore the board of parole and the prison people will be able to
hold you for an extended period of time if you don’t follow through
with—with the treatment that you’re given and face the reality that
what you did was wrong.

It is clear from the court’s introduction that it considered Williams’s status

as a youthful offender. Because the court was not required to explicitly mention

the Miller/Lyle factors, we find no abuse of discretion. Seats, 856 N.W.2d at 552

(review of a sentence within the statutory limit is for abuse of discretion); see also

State v. Davis, No. 18-1259, 2019 WL 1300445, at *1 (Iowa Ct. App. Mar. 20, 2019)
 22

(“The district court must consider certain factors when sentencing juveniles, but it

must expressly do so only when imposing a mandatory minimum sentence.”).

Even without “formal mandatory minimum sentences,” Williams asserts he

faces a de facto mandatory minimum because of the long wait-times endured by

inmates before they can complete sex-offender treatment, a condition of release.

Because this policy issue is outside our purview, we decline to address its impact

on Williams’s sentence.

2. Unproven offenses

Resentencing is appropriate if the record contains “clear evidence” that the

sentencing court relied on unproven or unprosecuted offenses. State v. Sailer,

587 N.W.2d 756, 762–64 (Iowa 1998). In his final complaint, Williams argues the

sentencing court improperly considered unproven offenses.

He objects to the court’s reference to the witnesses being “unable to leave”

the basement “where multiple people were present.” Williams points out the jury

acquitted him of kidnapping in the first degree. But the jury did return a verdict on

the lesser-included offense of sexual abuse in the third degree by either “force or

against the will” of L.M. or through her incapacity. Because this was a general

verdict, the court could consider Williams’s actions to detain L.M. in the basement

to complete the sexual assault. Similarly, the court was free to reflect on other

circumstances proven by the State in connection with the sexual-abuse counts.

For instance, the court could weigh J.K.’s testimony that she recalled people

holding her down.

Williams also worries the court treated the “group effort” by the perpetrators

as an aggravating factor even though the jury acquitted him on second-degree
 23

sexual abuse and conspiracy charges. The record shows the victims endured

sexual abuse by several attackers, including Williams. The sentencing court did

not abuse its discretion by considering the severity of the crime and its impact on

the victims. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000) (“[W]hen a

challenge is made to a criminal sentence on the basis that the court improperly

considered unproven criminal activity, the issue presented is simply one of the

sufficiency of the record to establish the matters relied on.”).

D. State’s Challenge to Merger

The State raises the next issue. It contends the court erred in merging the

four guilty verdicts from the jury trial into two convictions. The State contends “[t]he

district court lacked authority to merge the convictions and the State now moves

to correct that illegal sentence.” Problem is, the State did not cross-appeal or

otherwise ask for review of the merger rulings.

In the State’s view, it did not need to cross-appeal because the mergers

resulted in illegal sentences, which can be “raised at any time.” The State relies

primarily on State v. Love, 858 N.W.2d 721, 723 (Iowa 2015), where the court held

the unlawful failure to merge convictions can be raised at any time because the

situation results in an illegally harsh sentence. The State does not cite a case in

which an appellate court entertained a challenge to a faulty merger that was raised

for the first time in an appellee’s brief.12

12 In a post-argument notice of additional authority, the State cites State v.
Wieneke, No. 20-0126, 2021 WL 219222 (Iowa Jan. 22, 2021), a per curiam
opinion not to be published. The supreme court granted further review of our
opinion in which we found the district court imposed an improper split sentence.
State v. Weineke, No. 20-0126, 2020 WL 594460, at *2 n.2 (Iowa Ct. App. Oct. 7,
2020); see also State v. Formaro, 638 N.W.2d 720, 742 (Iowa 2002) (“[S]ection
 24

The State also relies on State v. Ohnmacht, 342 N.W.2d 838 (Iowa 1983)

for the proposition that neither waiver nor estoppel preclude the correction of

Williams’s illegally lenient sentence. In that case, Ohnmacht asserted the court

should dismiss the State’s appeal from the grant of probation for a forcible felony.

Ohnmacht, 348 N.W.2d at 841. Ohnmacht argued the attorney general exceeded

its authority in filing the appeal. Id. The court rejected that argument, holding the

attorney general acted both “properly and promptly” by moving in the district court

for correction when he first learned of the illegal sentence. Id. at 843. The

Ohnmacht holding does not allow the State-appellee to seek a reversal of a merger

for the first time on appeal. Because the State did not cross-appeal, we decline to

address the merger issue. See State v. Goodson, No. 18-1737, 2020 WL

3571803, at *10, n.13 (Iowa Ct. App. July 1, 2020) (noting prevailing party may not

seek more favorable ruling than it obtained in trial court without filing cross-appeal).

Because we find no basis for reversal, we affirm the convictions and

sentences.

AFFIRMED.

901.5(3) [1999], which authorizes a sentencing judge to ‘suspend the execution of
the sentence or any part of it,’ is only intended to authorize the suspension of a
portion of a sentence in regard to determinate sentencing orders. No such
authority exists with respect to an indeterminate sentence.” (footnote omitted)).
In Weineke, the supreme court vacated and remanded based on Iowa Rule
of Criminal Procedure 2.24(5)(a) which provides “[t]he court may correct an illegal
sentence at any time.” 2021 WL 219222 at *1. The court explained: “Because the
illegality in this case is clear, we exercise our discretion to correct it now.” Id.
But Wieneke does not change our analysis. Unlike the split sentence in
Wieneke, the illegality alleged by the State is not “clear” from the record. In fact,
for one of the mergers, the State is taking a different position on appeal than it did
at trial. And one of the State’s theories relies on finding four convictions based on
four separate acts, a task beyond the correction contemplated in Wieneke.