                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1285
                               Filed July 22, 2020


KENNETH LEE DOSS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Richard B. Clogg,

Judge.



      Kenneth Doss appeals from the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

          Kenneth Doss “pled guilty in 2007 to lascivious acts with a child.” Doss v.

State, No. 08-1512, 2009 WL 2184835, at *1 (Iowa Ct. App. July 22, 2009). The

district court imposed judgment and sentence, including a special sentence of

lifetime parole. See Iowa Code § 903B.1 (2005); Doss, 2009 WL 2184835, at *1.

Doss filed the first of several postconviction-relief applications. The district court

granted the State’s motion for summary judgment, and this court affirmed the

ruling.     See Doss, 2009 WL 2184835, at *6.          Doss filed several additional

postconviction-relief applications, which were dismissed or denied.

          Ten years after his conviction, Doss filed the postconviction-relief

application that is the subject of this appeal.        The district court denied the

application on the merits. Doss appealed.

          Doss contends (1) his plea attorney was ineffective in failing to “adequately

inform [him] of the extent of the rules and requirements of the special sentence at

the time of his plea” and (2) the district court “erred in holding the rules of [his]

special sentence and parole are constitutional and legal as applied to him.”

I.        Ineffective Assistance of Counsel

          Iowa Rule of Criminal Procedure 2.8(2)(b)(2) requires a court to ensure that

a defendant understands the direct consequences of a plea. State v. Hallock, 765

N.W.2d 598, 604–05 (Iowa Ct. App. 2009). Collateral consequences of a plea

“need not be stated by the court or discussed by counsel.” Id. at 605.

          There is no question the special sentence of “[l]ifetime probation/parole”

was a direct consequence of the plea subject to disclosure under rule 2.8(2)(b)(2).

See Boschert v. State, No. 13-0009, 2013 WL 6405468, at *3 (Iowa Ct. App. Dec.
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5, 2013); Hallock, 765 N.W.2d at 606; cf. State v. Lathrop, 781 N.W.2d 288, 296–

97 (Iowa 2010) (concluding section 903B.1 “was intended by the legislature to be

additional punishment for certain sex offenders” and was “subject to the restrictions

imposed by the constitutional prohibition against ex post facto laws”). There is also

no question Doss was informed of the special sentence during the plea

proceeding. The only question is whether the district court had an additional

obligation to inform him of sex-offender-treatment rules the board of parole

required him to follow when he began his special sentence.

       The district court concluded the rules were “collateral consequences of the

special parole and the sentencing court was not required to inform Doss of these

rules.” We agree.

“Parole eligibility is a collateral consequence of a plea.” See State v. Straw, 709

N.W.2d 128, 144 (Iowa 2006) (Lavorato, C.J., dissenting) (citing Kinnersley v.

State, 494 N.W.2d 698, 700 (Iowa 1993), overruled on other grounds by State v.

Kress, 636 N.W.2d 12, 20 (Iowa 2001)); Stevens v. State, 513 N.W.2d 727, 728

(Iowa 1994) (same); Benford v. State, No. 17-1253, 2018 WL 3912118, at *2 (Iowa

Ct. App. Aug. 15, 2018) (“While the [b]oard [of parole] lacks discretion in imposing

a special sentence, it has discretion in deciding whether to impose parole and

which conditions to impose.”); Iowa Admin. Code r. 201–45.2 (authorizing the

“district department” to “have all persons on parole sign conditions of parole that

are consistent with the standard conditions as established and approved by the

board of parole,” including “[r]estrictions on association” and “[t]reatment,

rehabilitation and other programming”). When Doss completed his underlying

sentence for the felony conviction, he signed a document titled “sex offender
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treatment program rules and conditions contract.” Doss’s probation/parole officer

testified the document reflected the board of parole’s decision to require Doss’s

post-discharge participation in the sex offender treatment program and compliance

with the rules.     The document set forth conditions for parole eligibility.

Accordingly,the rules were a collateral consequence of the plea and the plea-

taking court did not have an obligation to discuss them with Doss before accepting

the plea. It follows that Doss’s attorney did not breach an essential duty in failing

to challenge the absence of a discussion. See Strickland v. Washington, 466 U.S.

668, 687 (1984) (discussing ineffective-assistance standard and required proof of

counsel’s deficient performance); cf. State v. Carney, 584 N.W.2d 907, 910 (Iowa

1998) (“The failure to advise a defendant concerning a collateral consequence,

even serious ones, cannot provide a basis for a claim of ineffective assistance of

counsel.”).

       Doss next contends, “even if this Court finds the rules of [his] special

sentence are collateral, [plea counsel] was ineffective as he misinformed him of

the consequences.” See Stevens, 513 N.W.2d at 728 (“The rule is well established

that defense counsel does not have a duty to inform a defendant about the

collateral consequences of a guilty plea, but commits reversible error if counsel

misinforms the defendant as to these consequences.”). Specifically, Doss testified

his attorney incorrectly told him the rules would only be “used as a monitoring

thing,” and as long as he followed “the actual law,” he would be okay.

       Doss did not elaborate on the substance of the “actual law.” He also

acknowledged having no “conversations [with counsel] about all the rules that” he

was “going to have to follow” or “about specific provisions of the rules that would
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have been put on [him] as part of the special sentence that were not law violations.”

Doss could not have been “misinformed” about the effect of the rules if he failed to

discuss them with counsel. Cf. Saadiq v. State, 387 N.W.2d 315, 324 (Iowa 1986)

(“The question is not one of misinformation; instead it is one of whether counsel or

the judge went far enough in informing [the defendant].”). On our de novo review,

we conclude counsel did not breach an essential duty by “misinforming” Doss

about the consequences of noncompliance with the rules.

II.    Constitutionality of Rules

       Doss contends “the district court erred in holding the rules of [his] special

sentence and parole are constitutional and legal as applied to him.” He specifically

challenges “the total ban on his use of the internet” and the rules “restricting or

banning his dating, church attendance, obtaining counseling, and restriction on

who he can associate with.”

       The State responds that the rules are not subject to postconviction review

and “Doss is required to pursue the claim under [the Iowa Administrative

Procedure Act] chapter 17A where the [Iowa Board of Parole] can defend their

agency actions.”      See Benford, 2018 WL 3912118, at *1 (concluding a

postconviction-relief applicant “must pursue his claims [regarding board of parole

conditions] through administrative action and he failed to exhaust his

administrative remedies.”). The State acknowledges that it failed to bring this

“impediment to the [district] court’s authority” to the district court’s attention. See

Fassett v. State, No. 15-0816, 2016 WL 3554954, at *4 (Iowa Ct. App. June 29,

2016) (referencing distinction between subject matter jurisdiction and authority of

the case; concluding district court erred in finding a lack of subject matter
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jurisdiction to grant relief; and further concluding the district court lacked “the

authority to grant Fassett the relief he sought.”). And the State concedes the issue

is waived if not raised. See State v. Mandicino, 509 N.W.2d 481, 482–83 (Iowa

1993) (distinguishing subject matter jurisdiction from authority to hear a case and

stating the latter may be waived if not raised). Nonetheless, the State stresses the

importance of utilizing “chapter 17A proceedings . . . when an agency action is

implicated.”

       The State’s failure to raise the issue of the district court’s authority to grant

relief precludes affirmance on this alternate basis. See DeVoss v. State, 648

N.W.2d 56, 61 (Iowa 2002) (“We have in a number of cases upheld a district court

ruling on a ground other than the one upon which the district court relied provided

the ground was urged in that court.”). In any event, the supreme court has

authorized use of the postconviction-relief statute for certain challenges involving

the sex offender treatment program. See Belk v. State, 905 N.W.2d 185, 191 (Iowa

2017) (“[W]e conclude an inmate may proceed under Iowa Code section

822.2(1)(e) when alleging an unconstitutional denial of his or her liberty interest

based on the IDOC’s failure to offer SOTP when SOTP is a necessary prerequisite

to parole.”). Assuming without deciding the type of challenge raised here fits within

the Belk framework, we proceed to the merits.

       As noted, Doss begins with a challenge to the “total ban on [his] use of the

internet.” The State responds that error was not preserved on this issue. See

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We agree. Although Doss

pointed out that his parole was revoked and he was imprisoned a second time for

violating the internet-usage ban contained in his parole agreement, the district
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court did not decide whether the ban was unconstitutional. Accordingly, we have

nothing to review.

       We turn to Doss’s challenge to the rules banning dating, church attendance,

counseling, and association with people of his choice. Doss contends those rules

“unnecessarily violate his First Amendment Rights to Association and his rights

under article I, section 7 of the Iowa Constitution.” He relies on United States v.

Behren, 65 F. Supp. 3d 1140 (D. Colo. 2014). That opinion is inapposite.

       In Behren, the court stated a provision authorizing restrictions on

relationships and dating was “not, on its face, a greater deprivation of liberty than

is necessary nor is it necessarily an undue infringement of the right of association,

a right which routinely and necessarily is severely limited by a sentence in a

criminal case.” 65 F. Supp. 3d at 1157. The court noted that “[c]ourts have

consistently upheld imposition of conditions of probation that restrict a defendant’s

freedom of speech and association when those conditions bear a reasonable

relationship to the goals of probation.” Id. at 1157–58 (alteration in original)

(quoting United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995)). Although the

court ultimately concluded the constitutional challenge to the provision was not ripe

for review, the court’s pronouncements provide scant support for Doss’s assertion

that the rules he signed violated his First Amendment rights.

       Those pronouncements track our highest court’s statement that “[t]he First

Amendment protection of freedom of association is not absolute.” Baker v. City of

Iowa City, 867 N.W.2d 44, 53 (Iowa 2015). Doss conceded the rules imposing

conditions on parole were put in place “[t]o make sure that the public is safe.” And

he did not dispute that he violated the rules by engaging in a romantic relationship
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without obtaining permission to have the rules amended to allow the relationship.

On our de novo review, we conclude those concessions are sufficient to support

the district court’s conclusion that the rules did not violate Doss’s First Amendment

rights.

          Doss next argues “to the extent this Court determines the federal

constitution does not make these rules unconstitutional, Iowa’s constitution should

be read to do so.” He does not “argue for a separate Iowa constitutional analysis.”

See State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019). Accordingly, we decline his

request to take a different approach, even if that were within our purview.

          We affirm the denial of Doss’s postconviction-relief application.

          AFFIRMED.
