                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1522
                               Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARON D'PREE HAMPTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mills County, Timothy O’Grady,

Judge.



      A defendant appeals from three convictions for second-degree sexual

abuse.    JUDGMENT OF CONVICTIONS AFFIRMED, AND SENTENCES

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




      Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

        A defendant appeals his convictions and sentences for three counts of

second-degree sexual abuse. First, he argues he received ineffective assistance

of counsel due to his trial counsel’s removal of a juror by a peremptory strike

instead of by a challenge for cause. He also claims his trial counsel was ineffective

for failing to object to a victim impact statement submitted by the victim’s foster

parent. He further argues the court failed to make a valid determination of his

reasonable ability to pay restitution.

        We find that the defendant suffered no prejudice by his counsel’s use of a

peremptory strike to remove a juror that could have been challenged for cause.

We also find the court’s receipt of a victim impact statement by the victim’s foster

parent did not result in prejudice and therefore the defendant’s ineffective-

assistance-of-counsel claim fails. However, we vacate the portions of the trial

court’s orders pertaining to restitution and remand for a redetermination of

restitution in accordance with Iowa Supreme Court precedent.

Background Facts and Proceedings

        The defendant, Laron D’Pree Hampton, was convicted of three counts of

second-degree sexual abuse for multiple assaults of nine-year-old C.S. At the time

of the abuse, Hampton was dating C.S.’s mother. Both Hampton and C.S. tested

positive for chlamydia following the abuse. C.S. was subsequently placed in foster

care.

        A trial was held in July 2018. During voir dire, juror seven revealed that

members of his immediate family and his spouse’s family had suffered sexual

abuse; several were approximately C.S.’s age at the time of abuse. Upon being
                                         3


asked, “Do you believe that you could be a fair and impartial juror,” juror seven

responded, “It would be rough.” Defense counsel passed for cause and later

struck juror seven with a peremptory strike. At the close of trial, the jury found

Hampton guilty on all three counts of Iowa Code section 709.3(1)(b) (2017).

       At sentencing, C.S.’s foster mother presented an oral victim impact

statement without objection. In her statement, the foster mother commented on

Hampton’s failure to accept responsibility and asserted C.S. had suffered trauma

as a result of having to meet with lawyers. The trial court sentenced Hampton to

two consecutive twenty-five-year sentences, with a third twenty-five-year sentence

to run concurrently. The trial court noted the impact and trauma to C.S. as a reason

for the sentence. In the sentencing order, the trial court ordered Hampton to pay

restitution; fines, penalties and surcharges; court costs; and court-appointed

attorney fees. The court found that Hampton had a “reasonable ability to pay

attorney fees.” Hampton appealed.

Standards of Review

       “Our review of a sentence imposed in a criminal case is for correction of

errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “We will not

reverse the decision of the district court absent an abuse of discretion or some

defect in the sentencing procedure.” State v. Letscher, 888 N.W.2d 880, 883 (Iowa

2016) (quoting Formaro, 638 N.W.2d at 724).

       “We review restitution orders for correction of errors at law. When reviewing

a restitution order, we determine whether the court’s findings lack substantial

evidentiary support, or whether the court has not properly applied the law.” State

v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010).
                                            4


Discussion

   I. Ineffective Assistance of Counsel

         Hampton argues his trial counsel was ineffective for failing to strike juror

seven for cause and failing to object to a victim impact statement by the victim’s

foster mother.

         Typically, postconviction-relief proceedings are the appropriate venue for a

claim of ineffective assistance of counsel. State v. Rice, 543 N.W.2d 884, 888

(Iowa 1996). “However, where an adequate basis for a decision is present in the

record, they will be decided on direct appeal.” Id. If the record is inadequate, a

defendant      must   bring   his   ineffective-assistance-of-counsel    claim    in   a

postconviction-relief action. State v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa

2017).     “We will address on direct appeal claims of ineffective assistance of

counsel only if we determine the development of an additional factual record would

not be helpful and these elements can be decided as a matter of law.” State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009). We find the record sufficient to review

Hampton’s ineffective-assistance-of-counsel claims.

         A. Failure to challenge juror 7 for cause.

         During voir dire, juror seven indicated his wife and sister-in-law had suffered

sexual abuse at young ages. When asked whether he could be fair and impartial,

the juror said, “It would be rough.” Defense trial counsel passed for cause and

later struck the juror with a peremptory strike. Hampton now argues the failure to
                                          5


challenge juror seven for cause amounts to ineffective assistance of counsel,

requiring reversal. We disagree.

       To succeed on an ineffective-assistance-of-counsel claim, a defendant

must prove that “(1) his trial counsel failed in an essential duty, and (2) prejudice

resulted from counsel’s error.” State v. McPhillips, 580 N.W.2d 748, 754 (Iowa

1998). A claim fails “if either element is absent.” Id. To prove the first prong of an

ineffective-assistance-of-counsel claim, the defendant must prove “his attorney’s

performance was not within the normal range of competence.” Id. (quoting State

v. Spurgeon, 533 N.W.2d 218, 220 (Iowa 1995)).            We begin by presuming

competence. Id. To satisfy the second prong, a defendant establishes prejudice

by showing there is a “reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.”

State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (citation omitted). Challenges

for cause are governed by Iowa Rule of Criminal Procedure 2.18(5), which

provides that a challenge for cause “may” be made when a juror has “formed or

expressed such an opinion as to the guilt or innocence of the defendant as would

prevent the juror from rendering a true verdict upon the evidence submitted on the

trial.” Iowa R. Crim. P. 2.18(5)(k) (emphasis added).

       In State v. Neuendorf, 509 N.W.2d 743, 746–47 (Iowa 1993), the Iowa

Supreme Court abandoned the rule from State v. Beckwith, 46 N.W.2d 20, 23

(Iowa 1951), which held that the error in denying a challenge for cause is not cured

by the juror’s ultimate removal via peremptory strike. The Neuendorf court said,

       Whatever [the juror’s] prejudices were, she did not serve on
       defendant’s jury. The search for legal prejudice must therefore focus
       on the potential for prejudice that flowed from forcing defendant to
                                          6


       use a peremptory challenge on Juror Brandt that might have been
       used to remove another juror. In the absence of some factual
       showing that this circumstance resulted in a juror being seated who
       was not impartial, the existence of prejudice is entirely
       speculative. We believe it is too speculative to justify overturning the
       verdict of the jury on that basis alone.

509 N.W.2d at 746.      The court found no prejudice where the two jurors of

questionable impartiality were both struck from the jury. Id. at 747.

       Hampton asks that Neuendorf be overturned, which we are not at liberty to

do. Figley v. W.S. Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are

not at liberty to overturn precedent of our supreme court.”); see also State v.

Jonas, 904 N.W.2d 566, 568 (Iowa 2017) (declining to overrule Neuendorf). To

the contrary, we find Neuendorf demands the rejection of Hampton’s ineffective-

assistance claim. While in Neuendorf the district court overruled a challenge for

cause as to a prospective juror, no challenge for cause was made in the instant

case. In both cases, the offending jurors were struck with peremptory strikes.

Even if Hampton’s trial counsel had challenged for cause and the district court had

rejected the challenge, Neuendorf would require a showing of prejudice “based on

matters that appear of record” beyond the mere use of a peremptory strike in place

of a challenge for cause. Neuendorf, 509 N.W.2d at 747. As to this portion of

Hampton’s ineffective-assistance-of-counsel claim, Hampton bases his allegation

of prejudice solely on trial counsel’s failure to challenge for cause. This is not

enough.

       Hampton cites to a 2018 decision of this court for the proposition that “where

defense counsel unreasonably fails to strike an unqualified juror for cause, the

post-conviction movant is entitled to a presumption of Strickland prejudice.” Dixon
                                          7

v. State, No. 16-2198, 2018 WL 3471833, at *7 (Iowa Ct. App. July 18, 2018)

(quoting McGuire v. State, 523 S.W.3d 556, 564 (Mo. Ct. App. 2017)). We find

this decontextualized quote inapplicable.        In Dixon, the defendant raised

ineffective-assistance claims based on trial counsel’s failure to challenge two jurors

for cause. Id. at *3. Similar to the instant case, one of the challenged jurors was

eliminated via peremptory strike. Id. However, in Dixon, the parties agreed that a

challenged juror “did in fact serve on the jury.” Id. at *7. This important difference

distinguishes Dixon from the instant case. Notably, the Dixon quote mentioned in

Hampton’s brief was prefaced with our statement that “a postconviction claimant

establishes an entitlement to relief upon showing an actually biased juror served

on the jury.” Id. (emphasis added).

       A more germane recent decision supports our analysis. See Powell v.

State, No. 18-0542, 2019 WL 2524264 (Iowa Ct. App. June 19, 2019). In Powell,

we found no prejudice and affirmed the postconviction court’s denial of an

ineffective-assistance-of-counsel claim where trial counsel’s for-cause objections

to a juror were twice overruled but the juror was subsequently eliminated via

peremptory strike. See id. at *7. Having held in Powell that no prejudice resulted

where trial counsel’s for-cause objections were overruled but the challenged juror

was nevertheless eliminated via peremptory strike, we now hold there was no

prejudice in the instant case. Though no for-cause objection was made, the juror

was later eliminated and did not serve on the jury. Hampton has made no factual

showing of prejudice, and therefore “the existence of prejudice is entirely

speculative.”   See Neuendorf, 509 N.W.2d at 746.           We find no ineffective

assistance as to the failure to challenge juror seven for cause.
                                          8


       B. Victim Impact Statement

       Hampton’s next argument under his ineffective-assistance claim centers on

trial counsel’s failure to object to a victim impact statement given by the minor

victim’s foster parent at sentencing. Hampton argues that foster parents cannot

permissibly submit victim impact statements. We find the record below sufficient

to address this claim. See Rice, 543 N.W.2d at 888.

       The propriety of victim impact statements by foster parents appears to be

an issue of first impression in Iowa. Foster parents are not explicitly authorized to

submit victim impact statements, however they may be able do so under Iowa

Code section 915.21(1)(e).

       “Authority to submit impact statements is authorized under Iowa Code

section 915.21 and is wholly statutory.” State v. Matheson, 684 N.W.2d 243, 244

(Iowa 2004). Section 915.21 gives victims the right to present a victim impact

statement. “Victim” is defined broadly enough to include “the immediate family

members of a victim . . . who was under eighteen years of age at the time of the

offense.” Iowa Code § 915.10(3). The Iowa Supreme Court has clarified that

“immediate family” is limited to “husband and wife or [persons] related within the

second degree of consanguinity or affinity.” State v. Sumpter, 438 N.W.2d 6, 8

(Iowa 1989); see also State v. Lopez, 872 N.W.2d 159, 175–76 (Iowa 2015).

Because foster parents are typically not related by blood or marriage to their foster

child, they are excluded by this limitation.

       Yet we observe that foster parents may often be well positioned to describe

the impact of a criminal act on their foster child, particularly where the foster child

is too young or emotionally incapacitated to give his or her own statement. Iowa
                                           9


Code section 915.21(1)(e) provides such a mechanism: “If the victim is unable to

make an oral or written statement because of the victim’s age, or mental,

emotional, or physical incapacity, the victim’s attorney or a designated

representative shall have the opportunity to make a statement on behalf of the

victim.” As explained in Lopez, 872 N.W.2d at 176, the statute does not define the

term “designated representative.” Neither does it specify a process by which

designation occurs.

       In Lopez, the Iowa Supreme Court considered whether a guardian ad litem

was the two-year-old victim’s “designated representative” within the meaning of

section 915.21(1)(e). 872 N.W.2d at 176. The guardian ad litem had “attended

the plea hearing and sentencing hearing on her own initiative as the child-victim’s

[guardian ad litem] to look out for the interests of [the child].” Id. at 178. The Court

in Lopez stated,

       We need not decide on the existing record whether Leighty was
       properly designated to give the child’s victim-impact statement in
       2014 because, as we explain below, Lopez will be resentenced in a
       new hearing after remand. On remand, the district court shall ensure
       that only a person properly designated as B.H.’s representative
       under section 915.21(1)(e) may give a victim-impact statement on
       that child’s behalf.

Id. The court noted that no “parent or guardian” objected to the guardian ad litem’s

victim impact statement on behalf of the child. Id. at 178 n.5 (emphasis added).

Though the legal characteristics of a relationship between a foster parent and child

differ from those of legally recognized parent-child relationships and the law of

guardianships, the relationship between a foster parent and child may place a

foster parent in a position to speak on the child’s behalf in the event the child is a

victim of a crime and too young or emotionally traumatized to give a victim impact
                                         10


statement. Indeed, a foster parent’s relationship with their foster child is distinct

from the guardian ad litem relationship at issue in Lopez; as C.S.’s day-to-day care

provider, the foster parent in the instant case served a role much closer to “parent

or guardian” than did the guardian ad litem discussed in Lopez.

       The State points out that Iowa Code section 232.68(8) defines “[p]erson

responsible for the care of a child” as a “parent, guardian, or foster parent.”

Although we acknowledge this provision is not directly on point, as it appears in a

code division pertaining to child-in-need-of-assistance proceedings, we find the

definition helpful in interpreting the meaning and import of the term “designated

representative” in section 915.21(1)(e). Section 232.68(8) lends support to the

notion that a foster parent can not only serve as a properly designated

representative under section 915.21(1)(e) but, in some cases, even hold the power

of appointment just as a “parent or guardian” would. See Lopez, 872 N.W.2d at

178 n.5.

       However, we need not reach the issue of whether counsel breached a duty

in failing to object to the foster mother’s impact statement on behalf of her foster

child pursuant to 915.21(1)(e). We reach this determination because we conclude

Hampton cannot prove he was prejudiced by his counsel’s failure to object.

       With respect to the prejudice prong, we undertake a normal ineffective-

assistance analysis, finding prejudice only where the defendant shows by a

preponderance of the evidence that “a reasonable probability exists that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” State v. Ondayog, 722 N.W.2d 778, 784–85 (Iowa 2006) (evaluating

whether a defendant was prejudiced by his counsel’s conduct during a jury trial).
                                          11


       Hampton argues that the foster mother’s victim impact statement led the

court to sentence Hampton to consecutive, instead of concurrent, sentences. He

further argues that the foster mother’s complaint was an attack on his constitutional

right to a trial and that by not explicitly rejecting the victim impact statement, the

court erroneously relied on it. We reject Hampton’s argument that by entertaining

the victim impact statement the court relied on an improper sentencing

consideration. The record does not reflect that the district court relied on the foster

mother’s complaint that Hampton sought a trial, and the statement provided no

information that was not presented at trial.

       In her statement, the foster mother argued for a longer period of

incarceration in part because Hampton had proceeded to trial, saying, “Instead of

you taking responsibility for your sick actions, [C.S.] had to deal with the emotional

trauma of relaying the details of the abuse to various lawyers, providers and other

adults to prove that you hurt her.” She also spoke to the confusion and trauma

C.S. suffered more generally.

       The evidence at trial established that C.S. was nine years old at the time of

the offenses. She was living with her foster mother at the time of trial, who was

responsible for C.S.’s day-to-day care. C.S. was sexually abused multiple times

and developed chlamydia.        A mental health therapist testified to the child’s

diagnosis of post-traumatic stress disorder. The trial court sustained a motion for

special accommodations that allowed C.S. to testify via closed-circuit television so

as to be separated from Hampton at both her deposition and at trial. As the father

of C.S.’s youngest brother and the boyfriend of C.S.’s biological mother, Hampton

occupied a position of ostensible trust in relation to C.S.
                                         12


       In imposing sentence, the court recited “the trauma to [C.S.]” as a factor and

included in the sentencing order as a reason for the sentence the “impact on the

victim(s) in this case.” These are the only pieces of evidence Hampton relies upon

to show the district court’s alleged reliance on the foster mother’s complaint that

Hampton sought a trial. This evidence is too tenuously linked to the alleged ill to

justify vacating the sentence. Copious evidence at trial demonstrated the “trauma”

and “impact” C.S. suffered from the abuse, including a positive test for a sexually

transmitted disease, a diagnosis of post-traumatic stress disorder, the trial court’s

grant of special accommodations so C.S. could avoid contact with Hampton, and

C.S.’s testimony regarding the disturbing details of the abuse.

       We presume “that a sentencing court does not ordinarily consider an

impermissible factor.” State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004).

Additionally, we are less likely to reverse when improper evidence is introduced at

sentencing before a judge rather than before a jury at trial. See id. In Matheson,

the Iowa Supreme Court refused to assume a sentencing court did not consider as

evidence victim impact statements given by victims of a crime the defendant

committed and was convicted of in Illinois. Id. at 244–45. However, in that case,

the evidence introduced at sentencing “told the sentencing judge . . . a good deal

more than would otherwise be known.” Id. at 245. Such is not the case here.

       Instead, State v. Sumpter is a better guide.

              The victim impact statements . . . were hostile and bitter, and
              they expressed a strong desire for the ultimate retribution for
              their niece’s death. But they told the judge little, if anything,
              that was not already apparent. . . . The victim impact
              statements . . . did not contain the prejudicial type of
              information which would not otherwise be available to the
              judge and which we have held to be prejudicial, such as
                                        13


             allegations of unproven crimes or other facts outside the
             record.

Sumpter, 438 N.W.2d at 7.

      Since Sumpter was decided, the Iowa Supreme Court has reaffirmed that

where a sentencing court’s statement or order makes no mention of impermissible

evidence introduced through victim impact statements, the critical inquiry

precedent to reversal is whether “prejudicial information such as unproven crimes

or other facts outside the record” was introduced in the victim impact statement.

State v. Tesch, 704 N.W.2d 440, 454 (Iowa 2005). No such prejudicial information

was introduced here. Of the 348 words in the victim impact statement in question,

only thirty-seven were devoted to the foster mother’s complaint that Hampton did

not accept responsibility for the abuse. Hampton identifies no information in the

statement regarding unproven crimes or facts outside the record.

      We therefore follow Sumpter and Tesch and presume the sentencing court

did not impermissibly consider the complaint that Hampton had proceeded to trial

when it imposed sentence. Under the Sumpter rule, we presume the sentencing

court did not rely on the portion of the victim impact statement complaining over

his assertion of his trial right. 438 N.W.2d at 9. Considering the remarks as a

whole, we conclude this case is similar to Sumpter: “Any effect these victim impact

statements might have had in the sentencing decision was insufficient to require

vacation of the sentence.” Id. Hampton suffered no prejudice. His ineffective-

assistance-of-counsel claim fails.
                                            14


   II.         Restitution Order

         The Supreme Court’s decision in State v. Albright, 925 N.W.2d 144, 162

(Iowa 2019), clarified that “[c]ourts must wait to enter a final order of restitution until

all items of restitution are before the court. Once the court has all the items of

restitution before it, then and only then shall the court make an assessment as to

the offender’s reasonable ability to pay.” Here, the district court did not have the

benefit of the procedures outlined in Albright when it entered its order regarding

restitution.

         The trial court made two orders directing Hampton to pay certain costs and

fees. First, in the August 28, 2018 sentencing order, the court ordered Hampton

to pay “restitution as substantiated,” “fines, penalties and surcharges that have not

been suspended,” “court costs in an amount to be assessed by the Clerk of Court,”

and “court-appointed attorney fees per Iowa Code Section 815.9.” The court found

Hampton had “the reasonable ability to pay attorney fees in the total cost of legal

assistance in the amount approved by the State Public Defender.” Second, on

September 4, 2018, the court ordered Hampton to pay $16,860.00 in room and

board charges and administrative costs of $135.18, totaling $16,995.18.

         The Iowa Code creates two categories of restitution. Albright, 925 N.W.2d

at 159. The first category includes restitution to victims and to the clerk of court

for fines, penalties, and surcharges. Id. The second category includes restitution

         for crime victim assistance reimbursement, restitution to public
         agencies pursuant to section 321J.2, subsection 13, paragraph “b”,
         court costs including correctional fees approved pursuant to section
         356.7, court-appointed attorney fees ordered pursuant to section
         815.9, including the expense of a public defender, when applicable,
         contribution to a local anticrime organization, or restitution to the
         medical assistance program pursuant to chapter 249A.
                                            15



Id. (quoting Iowa Code § 910.2(1)). “The court can only order restitution for items

in this second category to the extent the offender has the reasonable ability to pay.”

Id. Additionally, “restitution orders entered by the court prior to the final [restitution]

order are not appealable as final orders or enforceable against the offender.” Id.

at 161. A court must not enter a final order of restitution before “all items of

restitution are before the court.” Id. at 162.

       While the court made a determination as to Hampton’s ability to pay

attorney fees, that order came before all items of restitution were before the court

and was therefore improper. Additionally, the court ordered Hampton to make

restitution for court costs without making a reasonable ability to pay determination.

We therefore vacate the restitution part of the sentencing order and the order

pertaining to the State’s reimbursement claim.           The matter is remanded for

determination of restitution, consistent with Albright and this opinion.

Conclusion

       Hampton suffered no prejudice when his trial counsel removed a juror with

a peremptory strike who might have been successfully challenged for cause or

when his counsel failed to object to a foster mother’s victim impact statement.

However, we vacate the portions of the sentencing court’s decisions that pertain

to restitution, instructing that the sentencing court should calculate restitution anew

in accordance with Albright.

       JUDGMENT         OF    CONVICTIONS         AFFIRMED,        AND     SENTENCES

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
