                   IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1567
                                  Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AARON CHRISTOPHER ORTIZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      A defendant appeals his conviction and sentence for assault with intent to

commit sexual abuse causing bodily injury. AFFIRMED.



      Joseph C. Glazebrook, Thomas Hurd, and Andrew Duffelmeyer of

Glazebrook & Hurd, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                         2


TABOR, Presiding Judge.

       After Aaron Ortiz turned eighteen in 2015, the probate court appointed his

mother, Mandi Smith, as his guardian under Iowa Code section 633.556 (2015).

The guardianship continued in 2017 when Ortiz pleaded guilty to assault with intent

to commit sexual abuse causing bodily injury. He now appeals his conviction and

sentence for that crime. He alleges, for the first time on appeal, because his status

as ward and his intellectual disabilities prevented him from making legal decisions,

his guardian should have been involved in all critical stages of his criminal case—

especially the competency proceedings under Iowa Code chapter 812 (2017) and

the guilty plea hearing. He asks us to vacate his conviction and remand for new

proceedings with the participation of his guardian. Alternatively, Ortiz argues his

prison sentence constitutes cruel and unusual punishment.

       Ortiz advances novel legal issues on a meager factual record. See State v.

Webster, 865 N.W.2d 223, 231 (Iowa 2015) (“Our review in this case is impacted

by the limited nature of the advocacy and the limited record developed below.”).

Ortiz acknowledges, despite having legal representation, he did not argue his

claims about the guardian’s participation to the district court. Yet on appeal he

does not blame his plea counsel. Instead, to excuse his failure to raise these

issues, he cites the concept of structural error and his alleged incompetence. On

this undeveloped record, neither ground allows us to reach the merits of Ortiz’s

challenge to his conviction.

       Regarding his sentencing claim, we cannot find it is categorically

unconstitutional to impose a prison term of any length on an adult with intellectual

disabilities. Accordingly, we affirm his conviction and sentence.
                                             3


I.     Facts and Prior Proceeding

       In March 2015, the probate court considered the functional limitations of

Aaron Ortiz and decided a limited guardianship would not be appropriate. 1 The

court granted his mother plenary powers to make legal decisions on his behalf.

See Iowa Code § 633.635 (2015).2

       In May 2017, T.Y. was returning home from walking her dog when Ortiz

approached her, asking if she knew a certain person. She told him she just

recently moved into the neighborhood and was not yet well acquainted. She

suggested “the lady across the street” might be a better resource. Ortiz asked for

pen and paper to jot down that neighbor’s name. T.Y. retrieved pen and paper for

him. But when she tried to reenter her front door, according to the minutes of

evidence, Ortiz “suddenly and for no reason given, reached around her with both

hands and aggressively grabbed her breasts and began squeezing and pinching.”

T.Y. was able to grab her cell phone and call 911. At the prospect of police

responding, Ortiz left her front porch on foot.            A neighbor witnessed Ortiz

“manhandling” T.Y. and drove around looking for the suspect, eventually locating

Ortiz for the police.

       The State charged Ortiz with assault with intent to commit sexual abuse

causing bodily injury, a class “D” felony, in violation of Iowa Code section 709.11(2)

(2017). Defense counsel asked for a competency evaluation of Ortiz, asserting:


1
  Our supreme court agreed to take judicial notice of the fact that a guardianship was
established for Ortiz in Polk County and it remained in effect at the time of his guilty plea
in this case. But the court directed Ortiz to remove from his brief any references to “the
contents of the records in the guardianship proceeding.”
2
   Because the guardianship was based on Ortiz’s intellectual disability, the court also
determined Ortiz was eligible to vote, but had to seek approval of the guardian before
getting married. See Iowa Code §§ 633.556, 633.635(4).
                                         4


      Evident from the undersigned’s interactions with the [d]efendant, the
      undersigned believes the [d]efendant suffers from a serious mental
      health issue. The [d]efendant also has a probation violation pending
      in FECR296889, and during that underlying case, a competency
      evaluation was completed by Dr. Craig Rypma where the defendant
      was found to not be competent to stand trial. The defendant is under
      a guardianship due to his intellectual disability.

Defense counsel asked for Dr. Rypma to again examine Ortiz.

      The district court suspended the proceedings and ordered Ortiz to be

examined by Dr. Michael Huston to determine his competency to stand trial under

chapter 812. Dr. Huston interviewed Ortiz at the Polk County jail on July 7, 2017.

Dr. Huston also interviewed Ortiz’s mother and guardian, Mandi Smith. According

to the psychologist’s report, the guardian said Ortiz “was given a diagnosis of

Attention Deficit Hyperactivity Disorder at an early age, and that in the past 10

years he has received diagnoses of Intellectually Disabled and Autism Spectrum

Disorder.”

      From his evaluation, Dr. Huston concluded Ortiz “showed minimal

impairment in his ability to understand and appreciate the charge against him and

his legal situation.” The doctor further found Ortiz showed “mild impairment” in his

ability to understand legal proceedings and in his ability to assist in his own

defense. Overall, Dr. Huston found Ortiz competent to stand trial, explaining:

      Mr. Ortiz has a mental health condition that has been diagnosed as
      Autism Spectrum Disorder, Impulse Control Disorder, and possibly
      Intellectual Disability. He is currently receiving and complying with
      psychiatric treatment at the jail, which appears to be controlling his
      symptoms effectively. His treatment at the IMCC in Oakdale last fall
      and winter apparently was helpful in improving his knowledge about
      court proceedings as part of the competency restoration process.
                                          5


After a hearing on July 20, the court found Ortiz competent to stand trial. 3

       Ortiz appeared for a plea hearing on September 6, 2017. At the hearing,

the court asked Ortiz, “Do you feel like you’re able to understand what it is that

you’re being accused of and basically what the consequences are going to be if

you admit to having done that?” Ortiz replied, “No, your Honor.” Also during the

hearing, defense counsel revealed he had misinformed his client that probation

was an option when the crime charged was a forcible felony requiring

imprisonment. In light of that new information, Ortiz asked for a chance “to talk to

his mother, his guardian, about what to do before he makes a decision.” Counsel

told the court Smith was in attendance, but the court ended the hearing, directing

the attorneys to “figure out a new date and time for us to resume or to reconvene

this proceeding and revisit the plea.”

       The parties reconvened about three weeks later for a combined plea and

sentencing hearing. Ortiz told the court he understood the charges and wanted to

go forward with his guilty plea.4 Ortiz admitted the factual basis for the assault-

with-intent offense. After the court accepted the guilty plea, Ortiz asked to proceed

to immediate sentencing. The court explained that by doing so, Ortiz would waive

his right to file a motion in arrest of judgment and could not complain on appeal

about any problem with his guilty plea. Ortiz said he understood and wanted to be

sentenced that day.




3
 It does not appear the competency proceeding was reported.
4
  As part of the plea agreement, the State dismissed a charge stemming from Ortiz’s
conduct while in the Polk County jail.
                                             6


       The conviction for assault with intent to commit sexual abuse required an

indeterminate five-year prison sentence but carried no mandatory minimum term.

The court had discretion to run the assault sentence concurrent to or consecutive

with Ortiz’s sentence for robbery in the third degree.5 The prosecutor argued for

consecutive terms not to exceed seven years based on the violent nature of current

offense. Defense counsel recommended concurrent terms.6

       The district court imposed consecutive sentences, explaining Ortiz needed

more time to focus on his rehabilitation and to protect the public. Ortiz appeals his

conviction and sentence.7

II.    Scope and Standard of Review

       “We review alleged violations of state or federal constitutional rights

de novo.” State v. Harrison, 914 N.W.2d 178, 187 (Iowa 2018). De novo review

means we make an independent evaluation based on the totality of circumstances

appearing in the trial court record. Id.


5
  Ortiz received a deferred judgment on that offense in February 2017. The court revoked
probation and imposed the original sentence after Ortiz stipulated to the violation.
6
  Defense counsel also offered two letters: one from Smith and one from ChildServe
worker, Keifer Nevius, who was the case manager for Ortiz’s Intellectual Disability waiver,
a program that allowed him to receive support in the community rather than reside in a
mental health institution. Smith described Ortiz’s behavioral struggles over the years and
her efforts to get him help. Nevius described a “24-hour, locked door” program available
for Ortiz at the Woodward Resource Center.
7
  During the briefing process, Smith—represented by the Drake Legal Clinic—sought
leave to file an amicus brief in support of Ortiz. See Iowa R. App. 6.906(1). Smith asserted
she had an important interest in the outcome of the case as Ortiz’s legal guardian. The
State did not resist and our supreme court accepted Smith’s amicus brief. The well-written
amicus brief argues “[t]he similarities between a minor child and a ward illustrate the need
to extend the protections offered in juvenile delinquency proceedings to criminal
proceedings involving a defendant under a guardianship.” In its appellee’s brief, the State
declines to address those arguments, contending the amicus brief “attempts to raise
issues that were not preserved” in contravention of rule 6.906(5)(b)(3). We find the
preservation challenge faced by the amicus rises or falls with the validity of the error-
preservation exceptions urged by Ortiz.
                                              7


III.   Analysis

       A. Request to Vacate Conviction

       Ortiz alleges the competency and plea proceedings were not fair because

the district court did not ensure his guardian’s involvement. He contends the

absence of his guardian constituted “structural error” effectively denying him the

constitutional right to be present at all critical stages of the proceedings and the

right to counsel. He also claims a violation of procedural due process. He asks

us to vacate his conviction and remand for proceedings with the participation of his

guardian.

       1. Allegation of Structural Error. Ortiz recognizes his first hurdle is error

preservation. Because he did not file a motion in arrest of judgment, generally “no

appellate review may be obtained on the validity of the plea proceeding.” See

State v. Lucas, 323 N.W.2d 228, 231 (Iowa 1982) (applying what are now

numbered as Iowa Rules of Criminal Procedure 2.8(2)(d) and 2.24(3) to claim plea-

taking judge should have held competency hearing under Iowa Code section

812.3).8 Ortiz argues because his complaint involves “structural error,” it is exempt

from the preservation requirement.

       In response, the State notes Ortiz is not asserting structural error to satisfy

the prejudice prong in an ineffective-assistance-of-counsel claim. See Lado v.

State, 804 N.W.2d 248, 252 (Iowa 2011) (holding no specific showing of prejudice

is required when counsel’s error renders the adversarial process itself


8
  Ortiz argues for the first time in his reply brief, under the catch-all category in Iowa Code
section 633.635(g), only the guardian had the right to file a motion in arrest of judgment,
excusing his failure to preserve error. We generally do not consider an argument raised
for the first time in a reply brief. Villa Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018).
                                               8

presumptively unreliable); see also Krogmann v. State, 914 N.W.2d 293, 325 (Iowa

2018) (presuming prejudice under article I, section 10 of Iowa Constitution).

Rather, Ortiz is alleging a free-standing claim of structural error akin to the outright

denial of counsel. See generally Gideon v. Wainwright, 372 U.S. 335, 343–45

(1963).

       While claims raised in the context of ineffective assistance of counsel are

an exception to error preservation, the State contends structural error standing

alone is not. See Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899,

1910, 1913 (2017) (defining “structural error” as the kind of government deprivation

of a right that cannot be deemed “harmless beyond a reasonable doubt” and

discussing it as either preserved error or in the context of ineffective assistance of

counsel).9 The State insists because Ortiz does not raise a claim of ineffective

assistance of counsel, “his claim of structural error does not provide a way around

error preservation.”10     But despite Ortiz not invoking ineffective assistance of

counsel, the State urges his claim “is one that would be best preserved for post-

conviction relief because the record is not currently adequate to address it.”



9
  Weaver noted claims of ineffective assistance “can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial.” 582 U.S. at ___, 137 S. Ct.
at 1912. And because doing so may undermine the finality of convictions, when petitioners
raise structural error in the context of ineffective-assistance claims (at least concerning
the right to a public trial), they must show prejudice to obtain a new trial. Id. at ___, 137
S. Ct. at 1913.
10
   This view is not universally accepted. See 24 C.J.S. Criminal Procedure & Rights of
Accused § 2582 (“While for nonstructural errors relief for error is tied in some way to the
error’s prejudicial effect, it is only for certain structural errors undermining the fairness of
the criminal proceeding as a whole that reversal is required without regard to whether the
error was preserved or the mistake’s effect on the proceeding.” (emphasis added)).
Regardless, we find it unnecessary to decide if free-standing structural error can be an
exception to error-preservation rules because Ortiz can raise a claim of ineffective
assistance for the first time in a postconviction-relief action. See Iowa Code § 814.7(1).
                                           9


       We agree resolution of Ortiz’s constitutional claims requires a more

developed record. Cf. State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004) (affirming

judgment without adjudicating Sixth Amendment claim due to “scant record” and

“availability of an adequate remedy in postconviction”). For instance, we do not

know the breadth of Smith’s involvement in the competency hearing beyond the

fact Dr. Huston contacted her before reaching his recommendation. We likewise

have little information about the extent to which defense counsel consulted with

Smith though, during the aborted plea hearing, he did convey his client’s request

to confer with his guardian before deciding to plead guilty. We also lack details

about the reasons for the guardianship and Ortiz’s mental status. Because we do

not pass on the merits of his claims on direct appeal, they are still available to Ortiz

in postconviction proceedings.11 See Lucas, 323 N.W.2d at 233.

       2. Allegation of Procedural Due Process Violation. As a second line of

defense, Ortiz argues his due process rights were violated because the court failed

to involve his plenary guardian. He contends not involving his guardian left him

without protection as a person found incompetent in the probate context. He also

argues he was not required to preserve error because of his incompetence. He

quotes Lucas: “It is fundamental that if the defendant was incompetent he was in

no position to preserve error, request a section 812.3 hearing, or avoid a waiver of

his motion in arrest of judgment.” 323 N.W.2d at 232.




11
   Although we do not reach the merits of Ortiz’s claims, we do note the cautions raised
by the State concerning the downside to creating “tiers of competency.” The State asserts
”the involvement of his guardian is not only superfluous, it is problematic.”
                                             10


          The trouble with this reasoning is that defense counsel requested and

received a competency evaluation for Ortiz before the guilty plea. Based on the

psychologist’s recommendation, the district court found Ortiz competent to

proceed with his criminal case. And Ortiz’s status as a ward does not automatically

signal his incompetency to enter a plea. See Koehler v. State, 830 S.W.2d 665,

666 (Tex. Ct. App. 1992) (“Proceedings under the Texas Probate Code appointing

guardians of persons of unsound mind and proceedings under the Texas Code of

Criminal Procedure determining legal competence to stand trial are dissimilar and

have different purposes.”); see also Blakely v. Tompkins, No. 2:16-CV-0379-TOR,

2016 WL 7378999, at *3 (E.D. Wash. Dec. 19, 2016) (“Capacity for purposes of a

guardianship and capacity to be tried for crimes are two separate legal concepts.”);

Yater v. Commonwealth, Nos. 2017-CA-000402-MR and 2017-CA-00403-MR,

2018 WL 6600234, at *2 (Ky. Ct. App. Dec. 14, 2018) (holding findings in

guardianship proceeding were relevant but the guardianship “inquiry is different

from a determination of his competency to stand trial in a criminal matter”).

          In fact, Ortiz does not contest the competency findings. He argues only that

due process mandates the guardian’s “participation” in the criminal proceedings.

Because Ortiz was found competent under chapter 812 and did not raise this claim

in the district court, we cannot decide it on direct appeal. See In re K.C., 660

N.W.2d 29, 38 (Iowa 2003) (“Even issues implicating constitutional rights must be

presented to and ruled upon by the district court in order to preserve error for

appeal.”).12



12
     Accordingly, we also cannot reach the claims raised in Smith’s amicus brief.
                                            11


       B. Request for Resentencing

       Ortiz next argues “the application of a mandatory minimum sentence” and

“the sentencing court’s failure to consider the mitigating impact of his impairments”

constituted cruel and unusual punishment. See U.S. Const. amend. VIII; Iowa

Const. art. I, § 17. We may consider this type of illegal-sentence claim for the first

time on appeal. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014).

       Cruel-and-unusual-punishment          challenges     come     in   two   varieties:

categorical as to a class of offenders (previously called a facial challenge) and

“gross proportionality” comparing the defendant’s particular sentence with the

seriousness of the crime (previously called as-applied). See State v. Oliver, 812

N.W.2d 636, 640 (Iowa 2012). Ortiz raises only a categorical challenge.13 He

contends “this [c]ourt should hold that application of mandatory minimum

sentences to offenders with [intellectual disabilities] categorically violates the cruel

and unusual punishment provisions of the Iowa and U.S. Constitutions and thus

is an illegal sentence.”14 He relies on Atkins v. Virginia, where the United States

Supreme Court decided execution was an excessive punishment for “a mentally

retarded criminal.” 536 U.S. 304, 321 (2002). He also compares his situation to

juvenile sentencing cases like Lyle, 854 N.W.2d at 380.




13
   Ortiz does suggest we look to State v. Ryan, 396 P.3d 867, 868 (Or. 2017), where the
Oregon Supreme Court considered an “as-applied challenge” to a mandatory-minimum
prison sentence. But Ortiz does not engage in the three-step analysis to determine
whether his sentence was “grossly disproportionate” under the Iowa and United States
Constitutions. See Harrison, 914 N.W.2d at 202–03. Accordingly, we do not decide
whether the seven-year indeterminate prison sentence was grossly disproportionate to his
culpability.
14
   Ortiz asked the supreme court to retain this case, but it instead transferred the appeal
to our court.
                                         12

       We evaluate a categorical challenge in two steps. Lyle, 854 N.W.2d at 386.

First, we investigate whether a national consensus exists in opposition to the

particular sentencing practice as expressed by objective standards such as

legislative enactments and state practices. Id. Second, we exercise independent

judgment as guided by case law and our understanding of the constitutional text,

history, meaning, and purpose. Id. In doing so, we consider the culpability of the

category of offenders at issue “in light of their crimes and characteristics” weighed

against the severity of the challenged punishment. Id. Plus, we examine the

legitimate penal goals served by the sentencing practice. Id.

       Several problems emerge when we embark on this two-step analysis in

Ortiz’s case. Initially, Ortiz inaccurately describes the sentencing practice at issue

as a “mandatory minimum.” See State v. Propps, 897 N.W.2d 91, 94 (Iowa 2017)

(explaining although probation was not an option, forcible felony at issue carried

no mandatory minimum sentence).         The sentencing court could not suspend

Ortiz’s sentence, but he was immediately eligible for parole. See Iowa Code

§ 702.11(1) (defining forcible felony as any felonious assault), § 709.11(2)

(categorizing assault with intent to commit sexual abuse causing bodily injury as a

class “D” felony), § 907.3 (prohibiting deferred judgment or suspended sentence

for forcible felony). Propps rejected the argument section 907.3 was categorically

cruel and unusual as applied to juvenile offenders. 897 N.W.2d at 102. And Atkins

rejected the notion intellectually disabled defendants would be “exempt from

criminal sanctions.” 536 U.S. at 318

       Next, it is not clear who would fall into the category of offenders so

intellectually disabled that any length of time in prison would be cruel and unusual
                                           13

punishment and, particularly, whether Ortiz falls into that category. See generally

Moore v. Texas, 586 U.S. ___, ___, 139 S. Ct. 666, 672 (2019) (Roberts, C.J.,

specially concurring) (highlighting continuing lack of clarity in how courts should

enforce the Atkins requirements).        Atkins cited “clinical definitions of mental

retardation” as requiring both sub-average intelligence and “significant limitations

in adaptive skills such as communication, self-care, and self-direction that became

manifest before age 18.” 536 U.S. at 318. Aside from the competency evaluation

and his sentencing letters, Ortiz made no record in the district court concerning his

intellectual function or his adaptive skills.

       On this record, we cannot find a categorical violation. First, Ortiz is unable

to show a national consensus, or even a state consensus, against imposing a

mandatory prison sentence of any length for individuals with intellectual disabilities.

See Paul Marcus, Does Atkins Make A Difference in Non-Capital Cases? Should

It?, 23 Wm. & Mary Bill Rts. J. 431, 465 (2014) (“In spite of tremendous scientific

support for the more careful treatment of offenders with low intelligence, and the

Supreme Court’s affirmation of that view, it seems as if Atkins simply is not

considered very much—if at all—in non-death penalty prosecutions.”).

       Second, the sparse factual development here limits our ability to exercise

independent judgment regarding the culpability of the category of offenders at

issue. Specifically, we are unable to tell if Ortiz fits into the category of people with

individual disabilities identified in Atkins. See Hall v. Florida, 572 U.S. 701, 723

(2014) (“Intellectual disability is a condition, not a number.”).

       Further, Ortiz has not established that incarcerating people with intellectual

disabilities for an indeterminate term would serve no legitimate penological
                                         14


purpose. Courts recognize four penological justifications: retribution, deterrence,

incapacitation, and rehabilitation. Oliver, 812 N.W.2d at 646. The sentence at

issue advances the State’s interest in retribution and incapacitation by requiring an

assailant with sexual motives to serve some amount of time in prison.

       We reject Ortiz’s categorical challenge under both the Eighth Amendment

and article I, section 17 of the Iowa Constitution.

       AFFIRMED.
