                   IN THE COURT OF APPEALS OF IOWA

                                      No. 14-1460
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW ELI VILLALPANDO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,

Judge.



      A defendant appeals follows resentencing for sexual abuse in the third

degree. AFFIRMED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, Senior Judge.

       Matthew Villalpando appeals following resentencing for sexual abuse in

the third degree, claiming his counsel was ineffective in failing to present more

evidence to show a mandatory sentence would amount to cruel and unusual

punishment. We affirm.

I.     Background Facts and Proceedings

       A jury found Matthew Villalpando guilty of sexual abuse in the third degree

following an incident between twenty-three-year-old Villalpando and a fourteen-

year-old girl. The jury also found Villalpando was the subject of a prior juvenile

delinquency adjudication for sexual abuse in the third degree.1 The district court

invoked and applied Iowa Code section 901A.2(3) (2009), a sentencing provision

requiring a person to serve “twice the maximum period of incarceration for the

offense, or twenty-five years, whichever is greater.”

       On direct appeal, this court rejected Villalpando’s sufficiency-of-the-

evidence challenge and affirmed his conviction. See State v. Villalpando, No. 12-

2039, 2014 WL 70256, at *1 (Iowa Ct. App. Jan. 9, 2014). However, this court

concluded, and the State agreed, that State v. Bruegger, 773 N.W.2d 862, 884,

886 (Iowa 2009) required a remand to afford Villalpando “the opportunity to

present evidence that the mandatory sentence under section 901A.2(3) was

grossly disproportional to his underlying crimes.” See id. at *1-2. Accordingly,

the court vacated Villalpando’s sentence and remanded for a hearing on whether

section 901A.2(3) was unconstitutional as applied to him. See id. at *2.

1
  Specifically, Villalpando’s juvenile record included a finding of juvenile delinquency for
third-degree sexual abuse following an incident between then sixteen-year-old
Villalpando and a twelve-year-old girl.
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       On remand, the district court took judicial notice of Villalpando’s juvenile

case file and the parties’ respective briefs and oral arguments on the matter,

addressed the factors set forth in Bruegger, 773 N.W.2d at 884-85, and

ultimately determined Villalpando’s sentence as initially imposed did not

constitute cruel and unusual punishment. Villalpando appeals.

II.    Scope and Standard of Review

       Villalpando’s claim on appeal is one of ineffective assistance of counsel.

To prevail on his claim, Villalpando would have to show that counsel (1) failed to

perform an essential duty and (2) prejudice resulted. See Dempsey v. State, 860

N.W.2d 860, 868 (Iowa 2015). We review the claim de novo. See State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

III.   Discussion

       Villalpando contends his counsel was ineffective in “present[ing] no

additional evidence, but merely agree[ing] that the sentencing court may judicially

notice [his] prior juvenile delinquency file and adjudication.”       According to

Villalpando, “[H]ad defense counsel made any effort to present [him] in a positive

light, there are serious questions whether the juvenile judge’s conclusions are

valid given that all of the underlying exhibits considered in the juvenile

proceeding were unavailable to the sentencing judge in this case for his

evaluation and conclusions.”     Upon our review, we conclude Villalpando has

failed to prove either prong of his ineffective-assistance-of-counsel claim.

       Villalpando appeared with counsel at the hearing on remand. Defense

counsel indicated Villalpando would be presenting the juvenile court record as

evidence and “making a legal argument based on the facts contained in that file
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and . . . as applied to the Bruegger decision” through a written brief. Defense

counsel filed a detailed brief addressing Villalpando’s juvenile history and noting

that several exhibits attached to the juvenile court’s dispositional order had been

lost or destroyed “[and] it now must be presumed the information contained in the

exhibits would benefit Defendant.” At the hearing, the State acknowledged “there

is just nothing else to provide to the Court” in terms of exhibits. See State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (“We will not find counsel

incompetent for failing to pursue a meritless issue.”).

        In any event, defense counsel’s brief addressed the information the

juvenile court relied on in its dispositional order and argued a mandatory

sentence would amount to cruel and unusual punishment for Villalpando in this

case:

                In [the juvenile case file] JVJV4341, the Defendant
        performed a sex act with a 12 year old. The victim was protected
        under Iowa Code 709.4(2)(b) and therefore could not legally
        consent to the sex act. It is an uncontested fact Defendant
        successfully completed sex offender therapy to such a degree to
        satisfy the juvenile court Defendant did not require placement on
        the sex offender registry. This fact substantially shows the opinion
        of the juvenile court was that Defendant was not seen as a threat or
        predator upon reaching the age of majority.
                The language in the dispositional order in JVJV4341 filed
        February 26, 2003 can only be described as a negative and harsh
        review of Defendant’s personality and conduct. However, it can
        also be deduced the court viewed Defendant as a delinquent in the
        category discussed by Justice Kennedy in Roper [v. Simmons, 543
        U.S. 551 (2005)] as a juvenile who was immature, acted
        impulsively, and had a personality less developed than an adult.
        By November 15, 2004, the Defendant had corrected his behavior,
        through counseling, to such a point the Juvenile Court for
        Muscatine County issued an order not requiring Defendant to
        register under Iowa Code 692A. These facts specifically show
        Defendant did respond to services, especially sex offender therapy,
        there was no concern that required sex offender registration, and
        there were no other factors that aggravated the juvenile matter to a
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       degree that the court required any more services, therapy, etc. after
       Defendant reached the age of majority. Without the exhibits
       attached to the Dispositional Order, no other legitimate theory or
       opinion of the juvenile matter can be met.

       In sum, defense counsel argued:

              Defendant, in the juvenile matter, had conducted and
       improved himself through therapy to such a degree that the
       Juvenile Court and Juvenile Probation Office determined Defendant
       was not a threat and therefore not required to register as a sex
       offender upon reaching the age of majority. It is clear the Juvenile
       Court saw Defendant as an immature kid who acted impulsively
       without thought of the consequences. Therefore, application of
       Iowa Code 901A.2 would be cruel and unusual punishment in this
       matter.

       We conclude counsel presented a meaningful individualized showing on

Villalpando’s behalf.   Villalpando has not met his burden to show counsel

breached an essential duty. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa

2008) (noting a claim of ineffective assistance of counsel fails if either element is

lacking).

       Moreover, there is no reasonable probability additional evidence would

have altered the outcome of sentencing. See State v. Braggs, 784 N.W.2d 31,

34 (Iowa 2010) (setting forth the standard to establish prejudice—a reasonable

probability that but for his counsel’s alleged deficiencies, the result of the

proceedings would have been different). The district court took judicial notice of

the juvenile case file and the parties’ respective briefs and oral arguments on the

matter. The court addressed the factors set forth in Bruegger, 773 N.W.2d at

884-85, and observed Villalpando’s offense did not involve a “Romeo and Juliet

boyfriend, girlfriend-type relationship” but instead involved “more predator-like

behavior” by Villalpando in “being involved in getting the 14-year-old victim drunk
                                         6


and/or high on marijuana, and . . . having sex with the victim in the basement of

the home.” The court further observed Villalpando was “just a few days more

than one month shy of his 16th birthday when the [juvenile] offense occurred”

and the juvenile court had noted “the reports established [Villalpando] ha[d]

serious attitude and behavior problems that have been treated by juvenile court

services and other community agencies since at least 1998,” but “[t]reatment

ha[d] not been successful in any venue.”         Ultimately, the court concluded,

“Villalpando’s sentence as initially imposed is not one of the relatively rare cases

where the defendant’s sentence under Iowa Code section 902A.2(3) constitutes

cruel and unusual punishment.”

      We affirm Villalpando’s judgment and sentence following resentencing for

sexual abuse in the third degree.

      AFFIRMED.
