IN THE COURT OF APPEALS OF IOWA
No. 16-0859
Filed June 7, 2017
JOSEPH WAYNE MILLER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Jackson County, Mark R. Lawson,
Judge.
Joseph Miller appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee State.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.
Joseph Miller appeals the district court’s denial of his application for
postconviction relief. We find Miller’s counsel was not ineffective. We also find
the imposition of lifetime parole was not cruel and unusual. We affirm.
I. Background Facts and Proceedings
Between December 16, 2008, and February 25, 2009, Miller was engaged
in a sexual relationship with a fourteen-year-old girl. At the time Miller was
twenty-eight years old. The State filed a trial information March 6, charging Miller
with sexual abuse in the third degree. During a deposition, Miller’s trial counsel
discovered the sexual relationship began when the victim was thirteen years old
and that Miller had transported the victim across state lines. Trial counsel
advised Miller to plead guilty in order to avoid an enhanced charge of sexual
abuse in the second degree.
Miller pled guilty and was sentenced to prison for a term not to exceed ten
years on June 12, 2009. He was also required to register as a sex offender and
received a special sentence of lifetime parole under Iowa Code section 903B.1
(2009). During the plea colloquy, the district court informed Miller of the special
sentence. Miller claims trial counsel did not inform him regarding the special
sentencing provisions before the plea hearing. At the postconviction hearing,
trial counsel could not specifically remember informing Miller about those
provisions. Trial counsel also testified he did not discuss any possible terms of
the lifetime parole.
Miller was released on parole in August 2014. Among various conditions
for parole, Miller was not allowed to have contact with minor children, including
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his own, could not communicate with the mothers of his children, could not use
Facebook, and could not view pornography. During the postconviction hearing,
Miller claimed he did not know these conditions were a possibility and he would
have gone to trial if he had known.
Miller’s parole was revoked December 2, 2014. He had been terminated
from employment November 14, but had not notified his parole officer and
continued to take a work furlough for three days. Miller claims his parole was
revoked for using Facebook and viewing pornography. Miller was returned to
prison and filed an application for postconviction relief, which the district court
denied. He now appeals.
II. Standard of Review
Claims of ineffective assistance of counsel are reviewed de novo.
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of
ineffective assistance of counsel, the [defendant] must demonstrate both
ineffective assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it
can be decided on that ground alone without deciding whether the attorney
performed deficiently.” Id. Both elements must be proved by a preponderance of
the evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991). Regarding
ineffective assistance, an attorney is presumed competent, but the presumption
is rebutted “by showing . . . counsel failed to perform an essential duty.” State v.
Clay, 824 N.W.2d 488, 495 (Iowa 2012). Counsel has breached an essential
duty when an error is so serious counsel is not functioning as an advocate
guaranteed by the Sixth Amendment. Id. “[W]e require more than a showing
that trial strategy backfired or that another attorney would have prepared and
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tried the case somewhat differently.” Taylor v. State, 352 N.W.2d 683, 685 (Iowa
1984).
III. Ineffective Assistance
Miller claims trial counsel was ineffective for failing to advise him of
possible consequences and conditions of lifetime parole. Miller was sentenced in
June 2009, became aware of the prohibitions regarding children in 2013, and
was unaware of all other restrictions until 2014. Likewise, trial counsel could not
have been aware of the consequences and conditions of parole as they were not
set until well after the plea. Our supreme court has held “[c]ounsel need not be a
crystal gazer; it is not necessary to know what the law will become in the future to
provide effective assistance of counsel.” Snethen v. State, 308 N.W.2d 11, 16
(Iowa 1981). Similarly, counsel cannot be expected to divine the future
conditions of parole, as requiring an accurate prediction of the future conditions
of parole would essentially render every attorney sub-standard and ineffective.
We find prophecy is not required to render effective assistance.
IV. Cruel and Unusual Punishment
Miller also claims the imposition of lifetime parole constitutes cruel and
unusual punishment as he claims it is grossly disproportionate to his crime. To
determine if a sentence is grossly disproportionate, Iowa courts follow a three
step procedure.
The first step in this analysis, sometimes referred to
as the threshold test, requires a reviewing court to
determine whether a defendant's sentence leads to
an inference of gross disproportionality. This
preliminary test involves a balancing of the gravity of
the crime against the severity of the sentence. If, and
only if, the threshold test is satisfied, a court then
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proceeds to steps two and three of the analysis.
These steps require the court to engage in an
intrajurisdictional analysis comparing the challenged
sentence to sentences for other crimes within the
jurisdiction. Next, the court engages in an
interjurisdictional analysis, comparing sentences in
other jurisdictions for the same or similar crimes.
State v. Oliver, 812 N.W.2d 636, 647 (Iowa 2012) (internal quotation marks and
citations omitted).
However, “it is rare that a sentence will be so grossly disproportionate to
the crime as to satisfy the threshold inquiry and warrant further review.” Id. Our
court has found sexual crimes are “particularly heinous.” State v. Sallis, 786
N.W.2d 508, 517 (Iowa Ct. App. 2009). Additionally, our legislature has
specifically implemented this particular statutory scheme to protect children from
being taken advantage of by significantly older abusers, taking into account the
difference of age between the parties, as well as the age of the victim. Iowa
Code § 709.4.
Miller claims his crime was a “Romeo and Juliet” relationship and,
therefore, should be punished less severely; we disagree. Miller was nearly
twice his victim’s age and committed multiple acts of sexual abuse over six
months. Miller also notes he sought and obtained permission from the victim’s
father. Miller should not be given any leniency because the victim’s father
allowed her to be abused. We find Miller has not met the threshold test, and
therefore, “no further analysis is necessary.” See Oliver, 812 N.W.2d at 650.
AFFIRMED.