                   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.
________________________________________________________________


      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.
