IN THE COURT OF APPEALS OF IOWA
No. 20-0771
Filed November 3, 2021
THOMAS G. RUTHERS, JR.
Petitioner-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Carl J. Petersen,
Judge.
Thomas Ruthers Jr. appeals the denial of his petition for a writ habeas
corpus. AFFIRMED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Mullins, P.J., May, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
MULLINS, Presiding Judge.
Thomas Ruthers Jr. appeals the denial of his petition for a writ habeas
corpus. He argues his counsel in an underlying proceeding concerning his status
as a sexually violent predator (SVP) rendered ineffective assistance in failing to
challenge his guilty plea in a criminal proceeding and object to hearsay evidence.
I. Background
We previously stated the factual and procedural background as follows:
In September 2010, Ruthers was charged by trial information
in Mahaska County with sexual abuse in the second degree. The
charge was based on reports Ruthers sexually abused R.S. in 2007
when Ruthers helped R.S.’s mother move to Iowa. Ruthers was
incarcerated in lieu of $35,000 bail pending trial.
In March 2012, shortly before a scheduled trial on the charge,
Ruthers reached a plea agreement with the State providing that in
exchange for his guilty plea to assault causing bodily injury to R.S.,
he would be sentenced to serve one year in the Mahaska County Jail
with credit for one year already served. Under the plea agreement,
the charge of sexual abuse in the second degree would be dismissed
and Ruthers would be released from custody after he was
sentenced.
In the jail, on Friday March 16, Ruthers signed a written plea
of guilty to the misdemeanor assault charge in an amended trial
information,1 waiving his right to presence at sentencing.
The following Monday, at 2:57 p.m., Ruthers’s written plea of
guilty was filed. The court accepted the plea of guilty to the
misdemeanor assault, entered judgment as agreed in the plea
agreement in an order filed 3:40 p.m., and dismissed the charge of
1
The written plea described the offense as an assault against the
mother of R.S., a mistake that does not figure in the arguments on
appeal. The State never alleged Ruthers assaulted R.S.’s mother;
the mother’s name is just one letter different than the name of R.S.
Our record does not reveal the reason the mother was named in the
written guilty plea rather than R.S. Ultimately, the court corrected the
factual basis of the guilty plea to name R.S. as the victim. This issue
was previously raised on direct appeal, subsequently dismissed, and
raised again in postconviction-relief proceedings and on appeal of
those proceedings. See Ruthers v. State, No. 16–0249, 2018 WL
739244 at *1–5 (Iowa Ct. App. Feb. 7, 2018).
3
sexual abuse in the second degree with prejudice. The court ordered
that mittimus not issue. Ruthers was not present in court.
Sometime the same day, Ruthers was served in the jail with
the State’s petition for his commitment as an SVP, which was filed
that afternoon at 1:10 p.m. He was not released as contemplated in
the plea agreement but remained held in custody on the SVP
petition.
On March 22, the district court held a hearing pursuant to Iowa
Code section 229A.5(2) (2012) and entered a probable cause finding
on the SVP petition. Ruthers was brought to the hearing and argued
for dismissal on the ground he was not “presently confined” for a
sexually violent offense because he had pled guilty to a nonsexual
assault of an adult female, B.S. The court denied Ruthers’s motion
for dismissal, and Ruthers remained incarcerated on the probable
cause finding for more than four years.2
The State, anticipating a problem based on Ruthers’s motion,
moved to set aside the guilty plea he had signed. On March 26, four
days after the probable cause hearing and seven days after
sentencing, the district court entered an order called “supplement” to
its judgment, finding the specific factual basis for Ruthers’s plea was
“the defendant picked up the child victim, R.S., and threw him on the
bed in a hard manner. The defendant caused R.S. to hit his head on
the board, causing a bump.”
Ruthers then filed a motion in the criminal case seeking a
determination of whether he had to register as a sex offender. In a
hearing on Ruthers’s motion, the court declined to reach the merits
of the issue raised by Ruthers, but added:
Even if I was going to make a determination on the
merits, I wouldn’t do anything else beyond what I’ve
already done because Iowa Code section 708.15
indicates that the fact finder may make a determination
that the offense was sexually motivated. I didn’t make
that determination. And I don’t believe that section
708.15 requires the court to make the determination
that it was not sexually motivated.
(Emphasis added.) Prior to trial on the State’s SVP petition, Ruthers
filed a motion to dismiss, a motion for summary judgment, and a
motion to dismiss for lack of subject matter jurisdiction. The motions
were denied.
The SVP petition was tried to the court on August 19, 2017.
In addition to expert testimony presented by the State and Ruthers,
R.S. also testified. The court made the following findings of fact:
2 The parties seem to agree that the passage of time was Ruthers’s preference
because he wanted to litigate a postconviction application challenging the
misdemeanor conviction for assault. The ruling denying postconviction relief was
affirmed by this court on February 7, 2018. See Ruthers, 2018 WL 739244.
4
The following have been established beyond a
reasonable doubt:
(1) State’s Exhibits 3 and 4 establish that
Ruthers has been convicted of a past sexually violent
offense.
(2) Between October 1, 2007, and November
30, 2007, on at least eight occasions Ruthers stayed in
a hotel room with R.S. Only those two stayed in the
hotel room on these occasions.
(3) R.S. was the same gender and age range of
Ruthers’s previous pedophilic interest. R.S. has
behavioral and learning problems.
(4) Ruthers and R.S. slept in the same bed
together while at the hotel room. No other adults were
present on the occasions.
(5) R.S. on at least one occasion swam naked
in the hotel room’s hot tub. Ruthers would not allow
R.S. to wear swimming trunks.
(6) In Mahaska County Ruthers pled guilty to
assault causing bodily injury, a serious misdemeanor.
The factual basis for Ruthers’s plea of guilty as it
relates to R.S. was as follows: “Picked him up and
threw him on the bed in a hard manner” and that he “hit
his head on the board and had a bump.” Ruthers
humped R.S. The minutes of testimony go on to state
that while Ruthers was throwing R.S. on the bed, it was
in connection with sex acts performed by Ruthers on
R.S.
(7) The Mahaska County conviction for assault
causing bodily injury was sexually motivated. The facts
and circumstances around this offense bear striking
similarity to the events that got Ruthers in trouble in the
State of West Virginia.
(8) Ruthers suffers from a mental abnormality,
that being, Pedophilic Disorder.
(9) Ruthers is likely to commit predatory acts of
sexual violence if not confined for treatment. In fact,
Ruthers is 97.2% more likely than other sexual
offenders to recidivate, based on Dr. Salter’s scoring of
the STATIC-99R.
(10) Ruthers’s mental abnormality of Pedophilic
Disorder causes him difficulty in his emotional and
volition control.
(11) The likelihood that Ruthers will commit
predatory acts if not confined is based in part on his
relationship with R.S. in Mahaska County, his lack of
5
prior successful treatment, and the actuarial and
empirical data identified by Dr. Salter.
(12) Dr. Salter is focused on Ruthers’s likelihood
to recidivate during his lifetime, not just the next five to
ten years.
(13) Ruthers has never successfully completed
sex offender treatment. While in prison, he quit the
program because of the facilitator.
(14) The Court concludes that Ruthers’s
involvement with R.S., which led to Ruthers pleading
guilty, constitutes a “recent overt act.” Specifically, the
Court finds that Ruthers engaged in sexual contact with
R.S. which includes Ruthers humping R.S. and
Ruthers forcing R.S. to touch his penis.
(15) The above-described actions caused harm
in a sexually violent nature.
(16) Ruthers admits to having at least four or five
sexual victims, with the youngest victim being eight or
nine.
On September 13, 2017, the court entered its ruling finding
Ruthers to be an SVP and committing him to the custody of the Iowa
Department of Human Services.
In re Det. of Ruthers, No. 17-1539, 2018 WL 5840803, at *1–3 (Iowa Ct. App. Nov.
7, 2018) (altered for readability).
On direct appeal, we reversed and remanded, concluding “Ruthers was not
‘presently confined’—within the meaning of section 229A.4(1)—at the time the
State filed the SVP petition” and “the act the State alleged was the necessary
‘recent over act’ was no longer ‘recent’ at the time of the SVP commitment
hearing.” Id. at *7. The State sought further review, and the supreme court, being
equally divided, affirmed the district court by operation of law. In re Det. of Ruthers,
No. 17-1539, 2019 WL 1890455, at *1 (Iowa Apr. 21, 2019); see Iowa Code
§ 602.4107.
In November 2019, Ruthers filed a petition for writ of habeas corpus.
Among other things, he argued his committal was unconstitutional because he
6
received ineffective assistance of counsel. The State moved for dismissal or denial
of the petition. Ruthers resisted. Following a brief hearing, the court denied the
petition for writ of habeas corpus. The court reasoned that in a habeas corpus
proceeding, the court could only review ineffective-assistance claims as they relate
to deficient jurisdiction and there was no longer a basis for Ruthers to claim
ineffective assistance as a jurisdictional defect because the supreme court
affirmed the original civil-commitment ruling. Pursuant to Iowa Rule of Civil
Procedure 1.904(2), Ruthers filed a motion to reconsider, enlarge or amend, which
the court denied. Shortly after said denial, Ruthers filed an amendment to his
motion, which the court denied as untimely since it had already ruled on the motion.
Ruthers appeals.3
3 While neither party addresses a potential impediment to our jurisdiction to
consider this appeal, “an appellate court has responsibility sua sponte to police its
own jurisdiction.” Bribriesco-Ledger v. Kilpsch, 957 N.W.2d 646, 649 (Iowa 2021)
(citation omitted). Iowa Rule of Civil Procedure 1.904(2) allows for the filing of a
motion to reconsider, enlarge, or amend within the time for filing a motion for a new
trial. Rule 1.1004 governs motions for a new trial, and rule 1.1007 requires they
be filed within fifteen days of the underlying decision. The district court’s decision
was filed on March 12, and Ruthers filed his motion on March 30. The deadline to
file was March 27, a Friday. See Iowa Code § 4.1(34) (setting forth rules for
computation of time). “The timeliness of posttrial motions and appeal is a matter
of jurisdiction and is not subject to waiver.” State ex rel. Miller v. Santa Rose Sales
& Mktc, Inc., 475 N.W.2d 210, 214 (Iowa 1991), superseded by statute on other
grounds, 1992 Iowa Acts ch. 1242, § 37 (codified at Iowa Code § 910.7A), as
recognized in State v. Hagen, 840 N.W.2d 140, 152 (Iowa 2013). So the motion
would not have extended the time to file a notice of appeal, which Ruthers filed on
May 18, more than thirty days after the court’s ruling. See Iowa R. App.
P. 6.101(1)(b).
All that said, rule 1.442(4) provides: “Whenever these rules or the rules of
appellate procedure require a filing with the district court or its clerk within a certain
time, the time requirement shall be tolled when service is made, provided the
actual filing is done within a reasonable time thereafter.” This rule applies to
motions under rule 1.904(2). See Estate of Morgan v. North Star Steel Co., 484
N.W.2d 199, 200 (Iowa 1992). Ruthers’s motion notes it was served upon the
State on Thursday, March 26, within the time for filing the motion. We conclude
7
II. Standard of Review
Habeas corpus proceedings are reviewable for legal error but ineffective-
assistance-of-counsel claims are reviewed de novo. State v. Hernandez-Galarza,
864 N.W.2d 122, 126 (Iowa 2015).
III. Analysis
We begin with the State’s position that habeas relief is not available
because Ruthers does not raise a jurisdictional defect.4 Our supreme court has
described habeas corpus proceedings as follows:
Historically, the writ [of habeas corpus] provided a postconviction
remedy after the time for appeal had passed, allowing an individual
to obtain an evidentiary hearing and a determination of any alleged
denial of constitutional rights. However, habeas corpus is not an
avenue to determine the guilt or innocence of an individual, pass
upon errors at trial, or challenge the sufficiency of the evidence.
Rather, the question is whether the trial court lacked jurisdiction to
enter judgment. Constitutionally ineffective assistance of counsel
actual filing of the motion the following Monday was within a reasonable time and
the deadline was therefore tolled, thus conferring appellate jurisdiction.
4 In its responsive brief, the State maintains Ruthers made no claims in his initial
brief that ineffective assistance of SVP counsel can serve as a jurisdictional defect
warranting relief on habeas corpus, the argument is therefore waived, and Ruthers
should not be permitted to elaborate on the issue for the first time in his reply brief.
In his reply brief, Ruthers expounds on the issue, arguing “ineffective
assistance of counsel constitutes the ‘jurisdictional defect’ reviewable by habeas
corpus.” The State filed a responsive motion to strike that portion of the reply brief,
arguing “[a] reply brief is not the place to reveal an argument that controlling cases
are wrongly decided and the court should depart from precedent to recognize a
novel constitutional right.” Ruthers resisted, and the supreme court ordered the
issue of whether the challenged portion of Ruthers’s reply brief could be
considered would be submitted with the appeal.
A review of Ruthers’s initial brief discloses he did argue a lack of effective
assistance of counsel in an SVP proceeding amounts to a jurisdictional defect
reviewable by habeas corpus. As such, we overrule the State’s motion to strike.
8
constitutes a jurisdictional defect and is reviewable by habeas
corpus.
Id. at 127–28 (internal citations omitted). “A respondent to a petition alleging the
person to be a[n] [SVP] shall be entitled to the assistance of counsel . . . .” Iowa
Code § 229A.6(1) (2019). This is a statutory right to counsel and does not directly
implicate the constitutional right to effective assistance of counsel under the Sixth
Amendment. See In re Det. of Crane, 704 N.W.2d 437, 438 n.3 (Iowa 2005). That
said, the proposition that “due process demands the appointed counsel provide
effective assistance” in habeas corpus proceedings “appears to be consistent with
[supreme court] precedent.” Id. So, if the rendering of ineffective assistance in an
SVP proceeding would violate due process, it would follow that ineffective
assistance would amount to a defect of a constitutional magnitude and could serve
as a jurisdictional defect. True, as Ruthers points out, a “lack of due process by
invasion of a constitutional right is a ground for granting habeas corpus either as
an additional ground for sustaining the writ or because such lack is a jurisdictional
defect.” Ely v. Haugh, 172 N.W.2d 144, 146 (Iowa 1969) (emphasis added). But,
here, we are dealing with lack of due process by invasion of a statutory, as
opposed to a constitutional, right. At the end of the day, the supreme court has
yet to decide whether “a respondent in SVP proceedings has a right to ‘effective’
assistance of counsel.” In re Det. of Blaise, 830 N.W.2d 310, 315 n.3 (Iowa 2013).
For purposes of this appeal, and based on our analysis below, we find it
9
unnecessary to address the issue, as we find Ruthers is not entitled to any relief
on his claims. See id.
To succeed on his claims of ineffective assistance of counsel, Ruthers must
show, by a preponderance of the evidence, his SVP counsel failed to perform an
essential duty resulting in prejudice. Id. at 316–17. We “may consider either the
prejudice prong or breach of duty first, and failure to find either one will preclude
relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez,
872 N.W.2d 159, 169 (Iowa 2015)). A failure to register meritless arguments or
motions does not amount to ineffective assistance of counsel. See State v. Lilly,
930 N.W.2d 293, 298 (Iowa 2019); State v. Tompkins, 859 N.W.2d 631, 637 (Iowa
2015).
On appeal, Ruthers argues the court erred in rejecting his claim that his
SVP counsel was ineffective in failing to attack his guilty plea in the criminal
proceeding. He claims there was a basis for his SVP counsel to have his guilty
plea thrown out. He seems to claim the victim’s purported recantation of the
allegations in a deposition before he pled guilty negated a factual basis and, had
the guilty plea been thrown out, the statements made by the victim in the deposition
and earlier interview at a child advocacy center would have been hearsay and not
properly before the SVP court in determining whether he was an SVP. He argues
counsel should have thus had the plea thrown out based on actual innocence
under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018). He also claims the State
engaged in prosecutorial error by allowing the SVP court to consider allegations it
knew the victim supposedly recanted.
10
Ruthers was charged with second-degree sexual abuse and ultimately pled
guilty to assault causing bodily injury. At the initial interview at a child advocacy
center, the child victim, who suffers from ADHD and memory loss, reported
Ruthers grabbed him and threw him on the bed. The child stated he hit the bed
board when he was thrown, causing a bump on his head. Ruthers had no clothes
on, and he pulled the child’s pants and underwear down. He then sat on the child’s
“private spot” then turned around and started humping the child, with Ruthers’s
“private spot” making contact with the child’s buttocks and “private spot.” Roughly
two years later, at a deposition in November 2011, the child recalled Ruthers
pushed him on the bed. The child did not recall hitting his head or getting a bump
on his head, but he recalled sometime in the middle of the night Ruthers started
humping him. The child recalled he was in his underwear and Ruthers was naked.
At the March 26, 2012 hearing on the State’s motion to set aside the plea based
on the error in the written guilty plea, the court turned to the minutes of evidence
to determine whether the plea was supported by a factual basis. 5 The minutes6
disclosed to the court that two witnesses would testify Ruthers picked up the child
victim and threw him on a bed in a hard manner, the victim hit his head on the bed
board, and the impact caused a bump.
To begin, the record before us shows the record before the plea court
supported a factual basis to the charge. So challenging the plea on that basis by
some avenue during the SVP proceeding would have been meritless, and counsel
5 The written guilty plea authorized the court to examine the minutes of evidence,
trial information, investigative reports, and counsels’ recitation of the facts in
determining whether a factual basis existed.
6 The minutes of evidence are not part of the record in this appeal.
11
did not fail to perform an essential duty in not pursuing it. See Lilly, 930 N.W.2d at
309. Ruthers goes on to suggest the victim’s purported recantation supports a
claim of actual innocence under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018).
Upon our review, we conclude the highlighted evidence Ruthers claims SVP
counsel should have utilized to challenge his plea and profess actual innocence—
purportedly recanting being thrown on the bed, hitting, his head, and getting a
bump—would not support an actual innocence claim under Schmidt. First, the
child reported the physical aggression resulting in the head bump closer in time to
the incident. While he did not recall it two years later in a deposition, the lack of
recall is understandable, given his ADHD and memory-loss issues. And the act of
the humping, without causing injury, could still serve as an assault, as being
“intended to result in physical contact which will be insulting or offensive to
another.” See Iowa Code § 708.1(1) (2007). Even without the head bump, the
assault by humping could still serve as a sexually violent offense within the
meaning of Iowa Code section 229A.2(10)(g). So the actual-innocence claim
would have also been meritless, as it had no potential to qualify as material
evidence that probably would have changed the outcome.7 See Schmidt, 909
N.W.2d at 778.
7 We also note the plea was entered in 2012, and the SVP proceeding commenced
the same year and concluded in 2017. Up until the supreme court’s decision in
Schmidt, the rule was that “criminal defendant waives all defenses and objections
to the criminal proceedings by pleading guilty, including claims of ineffective
assistance of counsel,” except for “irregularities intrinsic to the plea—irregularities
that bear on the knowing and voluntary nature of the plea.” State v. Brown, 911
N.W.2d 180, 187 (Iowa Ct. App. 2018); accord Schmidt, 908 N.W.2d at 803
(Waterman, J., dissenting) (“Until today, it had been well settled that a plea of guilty
waives all defenses or objections which are not intrinsic to the plea itself.” (internal
quotation marks omitted)). The supposed recantation, if you could call it that,
12
Ruthers goes on to argue the transcripts of the interview at the child
advocacy center and the November 2011 deposition should have not been
admitted at the SVP trial and his counsel was ineffective in failing to object to them
on hearsay grounds. But there is nothing in our record that affirmatively
establishes they even were admitted, as we are without a full record from the SVP
proceeding, we only have a patchwork of items from the separate proceedings
over the years. Assuming they were admitted, we are without a full picture of all
of the other evidence and what it showed. So, assuming it was hearsay, we have
no way to assess whether it amounted to harmless error as not resulting in
prejudice. See State v. Newell, 710 N.W.2d 6, 16 (Iowa 2006). As the appellant,
it was Ruthers’s duty to provide us with a record adequate to decide the appeal.
See In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005). The record made before the
district court was inadequate on this point. It would be improvident for us to
speculate on what the evidence and testimony at the SVP trial showed or did not
show, and we decline to do so. F.W.S., 698 N.W.2d at 135–36. We affirm the
district court’s rejection of this claim.
Finding no cause for reversal on the issues properly presented for our
review, we affirm the denial of Ruthers’s petition for a writ of habeas corpus.
AFFIRMED.
occurred in a deposition of the victim in 2011 and Ruthers was aware of it before
his plea, so it was not an irregularity intrinsic to the plea bearing on the knowing
and voluntary nature of the plea. If Ruthers is claiming his counsel was ineffective
in failing to predict Schmidt’s change in the law, we reiterate effective assistance
of counsel does not require an attorney to be clairvoyant but turns on whether,
given the circumstances, an argument was worth raising. Millam v. State, 745
N.W.2d 719, 723 (Iowa 2008). Under the circumstances of this case, we conclude
an actual-innocence claim was not worth raising.