Michael Connor, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1957
Filed May 25, 2016
MICHAEL CONNOR,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Lucas County, Martha L. Mertz,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. REVERSED AND REMANDED.
Clemens A. Erdahl of Nidey, Erdahl, Tindal & Fisher, P.L.C., Cedar
Rapids, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2
VOGEL, Judge.
Michael Connor pled guilty to two counts of third-degree sexual abuse and
one count of sexual exploitation of a minor based on his abuse of a foster child in
his home. The court sentenced him to ten years in prison on each count and
ordered the two sexual-abuse charges to run consecutively, but the exploitation
charge was ordered to run concurrently to the first sexual-abuse sentence. In
pronouncing the sentence, the district court stated,
Now, as to the issue of whether or not these counts should run
concurrently or consecutively. In making up my mind about that
particular issue, I have considered all of the things that I have
previously stated on the record. But this is an egregious case. To
think that a foster parent in the position of authority that he was
would sexually abuse a fifteen-year-old girl over a period of at least
fourteen months,[1] it is just nearly unimaginable to this Court.
Because of that, I am going to order that Counts I and II run
consecutive to each other and that County VII run concurrent to
Count I.
Connor’s conviction and sentences were affirmed on appeal by this court. See
State v. Connor, No. 12-1634, 2013 WL 3822104, at *1 (Iowa Ct. App. July 24,
2013).
Connor filed an application for postconviction relief (PCR) asserting,
among other claims, his attorney was ineffective at sentencing when counsel
failed to correct the court that the period of sexual abuse lasted two months, not
fourteen months. He claims the sentencing court’s misunderstanding of the
1
We note the statement that the abuse lasted fourteen months was repeated in both the
minutes of testimony and the presentence investigation (PSI) report, though the PSI also
included references that Connor asserted the abuse lasted from June 2010 until August
2010. At the guilty plea hearing, Connor agreed he sexually abused the victim between
June 22, 2010, and August 20, 2011. At the PCR trial, Connor and his wife testified the
victim left their residence on August 20, 2010, not 2011. Conner offered documentation
showing he moved to Florida in August 2010, and thus, he would have had no contact
with the victim after that time. The PCR court accepted as established fact, as do we,
that the abuse lasted two, not fourteen months.
3
length of time the abuse lasted was the deciding factor in making the sexual-
abuse sentences consecutive, rather than concurrent.
The PCR court did not address whether counsel breached an essential
duty when he did not correct the sentencing court on the length of the abuse.
Instead, the court denied Connor’s claim by concluding Connor failed to prove he
was prejudiced by counsel’s failure. See State v. Ambrose, 861 N.W.2d 550,
556 (Iowa 2015) (“We can resolve ineffective-assistance-of-counsel claims under
either prong of the analysis.”). The PCR court concluded the length of the abuse
“was only one fact among several” the sentencing court considered when it
decided to run the sexual-abuse sentences consecutively. The PCR court
stated, “Examining all of the facts, this court doubts, and Applicant failed to prove
that, the judge’s belief as to the duration of the sexual abuse was a deciding
factor in imposing consecutive sentences. The sentencing judge had several
good reasons to do so.”
We review ineffective-assistance claims de novo. State v. Lopez, 872
N.W.2d 159, 168 (Iowa 2015). To establish his ineffective-assistance-of-counsel
claim, Connor must prove “by a preponderance of the evidence that ‘(1) counsel
failed to perform an essential duty, and (2) prejudice resulted.’” State v. Velez,
829 N.W.2d 572, 573 (Iowa 2013) (quoting Ennenga v. State, 812 N.W.2d 696,
701 (Iowa 2012)). With respect to the first element, there is a presumption
counsel performed competently, and miscalculated tactics or improvident trial
strategy do not necessarily amount to ineffective assistance. State v. Ondayog,
722 N.W.2d 778, 785–86 (Iowa 2006). To prove prejudice, Connor must show “a
reasonable probability that, but for counsel’s errors, the results of the
4
proceedings would have been different.” See State v. Carrillo, 597 N.W.2d 497,
500 (Iowa 1999). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceeding.” Id.At the PCR hearing, Connor’s counsel did not assert he had a particular
strategy or tactic in mind when he did not bring to the court’s attention the
difference in the duration of the abuse.2 Connor testified he told his counsel
about the duration mistake but was told by counsel it did not matter. Counsel
testified he had no recollection of speaking with Connor about the issue, and
counsel assumed if he had noticed it he would have made a correction to the
PSI. The PSI included both the allegation the abuse occurred over fourteen
months and Connor’s assertion the abuse lasted for two months. Counsel
admitted he should have called the discrepancy to the court’s attention. We
conclude Connor proved counsel failed to perform an essential duty.
As to the prejudice prong, when trial counsel did not correct the
discrepancy, the fourteen-month duration of abuse became an improper
sentencing factor the court considered, which tainted the sentencing proceeding.
See id. at 500–01 (noting the prosecutor’s breach of the plea agreement
amounted to an improper sentencing factor the court should not have
considered). When a court considers an improper sentencing factor, we are
required to vacate the sentence and remand for resentencing. Id. at 501. “[W]e
2
Counsel did go on to speculate at the PCR proceeding that bringing the duration
discrepancy to the attention of the sentencing court may have been perceived by the
court as an attempt to minimize the abuse the victim suffered and may have resulted in
an even harsher sentence. However, this kind of post hoc rationalization does not
equate to an improvident trial strategy, a miscalculated tactic, or a mistake in judgment
so as to justify counsel’s inaction. See Ondayog, 722 N.W.2d at 786.
5
may not speculate about the weight given by the sentencing court to the
improper factor.” Id. “[T]here is no way of knowing what sentence would have
been pronounced had the improper factor not been considered.” Id.Upon our de novo review of the record, we conclude Connor has met his
burden to prove by a preponderance of the evidence that he was prejudiced
because, with an improper sentencing factor in the mix, our confidence in the
outcome of the proceeding is undermined. When a sentence is challenged
based on the court’s consideration of an improper factor, our case law is clear
that the case must be remanded for resentencing. See id. The sentencing court
here referenced the length of the abuse—which was incorrect—immediately
before pronouncing its decision on whether to make the sentences consecutive.
While the PCR court and Connor’s trial counsel believed the duration of the
abuse was not a deciding factor for the sentencing judge in imposing consecutive
sentences, based on the language used by the sentencing court, we are not
confident that is the case.
We therefore reverse the district court’s denial of Connor’s postconviction-
relief application and remand the matter for an order vacating his sentence and
resetting the matter for resentencing. We do not express any opinion as to what
the sentence on remand should be or how the sentencing court should exercise
its discretion.
REVERSED AND REMANDED.