IN THE COURT OF APPEALS OF IOWA
No. 16-0355
Filed October 26, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES L. THORNE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, John J.
Bauercamper, Judge.
Defendant appeals his convictions for three counts of assault with intent to
commit sexual abuse. AFFIRMED.
John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
James Thorne appeals his convictions for three counts of assault with
intent to commit sexual abuse. We conclude Thorne has not shown he received
ineffective assistance because defense counsel permitted him to enter an Alford
plea to three counts of assault with intent to commit sexual abuse. 1 Thorne’s
second claim, that his plea was not knowing and voluntary, must be preserved
for possible postconviction proceedings. We affirm Thorne’s convictions.
I. Background Facts & Proceedings
On December 19, 2014, officers were executing a search warrant at the
home of Thorne on a different matter when they observed a fifteen-year-old girl
come out of the bedroom. Thorne was then twenty years old. An examination of
Thorne’s cell phone showed text messages of a sexual nature between Thorne
and the girl. When questioned, both Thorne and the girl stated they had been
engaged in a sexual relationship.
Thorne was charged with four counts of sexual abuse in the third degree,
a class “C” felony. Thorne signed a written plea agreement in which he agreed
to enter Alford pleas to three reduced charges of assault with intent to commit
sexual abuse, in violation of Iowa Code section 709.11(3) (2013), an aggravated
misdemeanor. The plea agreement also provided Thorne would be sentenced to
two years in prison on each count, to be served consecutively, the sentences
would be suspended, and Thorne would be placed on probation. In addition,
1
In an Alford plea, a defendant acknowledges the evidence strongly negates his claim of
innocence and enters a guilty plea, but does not admit guilt. See North Carolina v.
Alford, 400 U.S. 25, 37 (1970).
3
Thorne would be given a special sentence for ten years, pursuant to section
903B.2, and would be required to register as a sex offender.
The court accepted Thorne’s written plea and sentenced him in
accordance with the plea agreement. The fourth charge against Thorne was
dismissed without prejudice. Thorne now appeals his convictions, claiming he
received ineffective assistance of counsel.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform
an essential duty and (2) prejudice resulted to the extent it denied the defendant
a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has
the burden to show by a preponderance of the evidence counsel was ineffective.
State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
III. Factual Basis
Thorne claims he received ineffective assistance because defense
counsel permitted him to enter an Alford plea to three counts of assault with
intent to commit sexual abuse when there was not a sufficient factual basis for
the plea. The offense of assault with intent to commit sexual abuse requires
evidence of an assault, as defined in section 708.1. Iowa Code § 709.11.
Thorne claims there was no evidence of an assault because he was involved in a
consensual sexual relationship.
“It is a responsibility of defense counsel to ensure that a client does not
plead guilty to a charge for which there is no objective factual basis.” State v.
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Finney, 832 N.W.2d 46, 54 (Iowa 2013). “It follows that no advice to plead guilty
would be considered competent absent a showing of a factual basis to support
the crimes to which the accused has elected to plead guilty.” Id. at 54-55. This
requirement exists where a defendant has entered a guilty plea. State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). “On a claim that a plea bargain is
invalid because of a lack of accuracy on the factual-basis issue, the entire record
before the district court may be examined.” Finney, 832 N.W.2d at 62.
In State v. Anderson, 222 N.W.2d 494, 495 (Iowa 1974), the Iowa
Supreme Court stated:
Preliminarily, we note that under our decisions, as under the
decisions generally, “a man who commits an overt act upon the
person of a female under the age of consent, which would amount
to an assault with intent to rape, is guilty of such offense even
though the female consents to such act. Since the child cannot
consent to the crime of rape, she equally cannot consent to an
assault with the intent to commit rape.”
(Citation omitted.) See also State v. Coil, 264 N.W.2d 293, 294 (Iowa 1978)
(“We have held assault with intent to commit rape includes an assault with intent
to commit statutory rape, even though there may have been purported consent
by the minor female partner.”).
In the present case, the victim could not consent because she was fifteen
years old and Thorne was more than four years older. See Iowa Code
§ 709.4(1)(b)(3)(d) (defining third-degree sexual abuse as occurring when a
person performs a sex act, the participants are not cohabiting as husband and
wife, the victim is fourteen or fifteen years of age, and the perpetrator is four or
more years older than the victim). The victim’s purported consent to a sexual
relationship with Thorne does not preclude a finding he committed assault with
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intent to commit sexual abuse. We conclude Thorne has not shown he received
ineffective assistance because defense counsel permitted him to enter an Alford
plea to three counts of assault with intent to commit sexual abuse.
IV. Knowing and Voluntary
Thorne claims he received ineffective assistance because defense
counsel misled him as to how long he would be required to register as a sex
offender. He states defense counsel incorrectly advised him he would only be
required to register as a sex offender for ten years. Thorne states under section
692A.106(5) he will actually be required to register for the rest of his life. As a
result, he claims his plea was not knowing, intelligent, or voluntary.
Where the record is not adequate to address a claim of ineffective
assistance of counsel, we must preserve the claim for possible postconviction
proceedings. See State v. Fountain, 786 N.W.2d 260, 267 (Iowa 2010). The
current record does not show what advice defense counsel gave to Thorne on
this issue. We determine this issue must be preserved for possible
postconviction proceedings.
We affirm Thorne’s convictions on three counts of assault with intent to
commit sexual abuse.
AFFIRMED.
State of Iowa v. James L. Thorne
Combined Opinion