                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0486
                                  Filed May 11, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD ALLAN TITUS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Stephen C.

Gerard II, District Associate Judge.




      Chad Allen Titus appeals the denial of his motion to correct an illegal

sentence. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




      Considered by Doyle, P.J., and Tabor and Mullins, JJ.
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DOYLE, Presiding Judge.

       After Chad Allen Titus pled guilty to indecent exposure, the district court

imposed the special sentence pursuant to Iowa Code section 903B.2 (2011),

which committed Titus to the custody of the director of the Iowa Department of

Corrections for ten years. Titus appeals the denial of his motion to correct an

illegal sentence, which challenged the constitutionality of the special sentence.

He alleges the special sentence, as applied to him, constitutes cruel and unusual

punishment because it is disproportionate to his offense. He also alleges he was

denied his right to counsel when the court denied his motion without appointing

counsel to represent him and affording him the opportunity to be heard. Because

these claims are constitutional in nature, our review is de novo. See State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

       Our supreme court in State v. Wade, 757 N.W.2d 618, 624 (Iowa 2008),

held that Iowa Code section 903B.2 is not a grossly disproportionate punishment

for committing indecent exposure and subsequently violating parole terms. See

also State v. Jorgensen, 785 N.W.2d 708, 713 (Iowa Ct. App. 2009) (applying

Wade in determining counsel was not ineffective by failing to urge section 903B.2

constitutes cruel and unusual punishment under federal and state constitutions).

After Wade, our supreme court decided Bruegger, in which it held “defendants

who commit acts of lesser culpability within the scope of broad criminal statutes

carrying stiff penalties” could argue a sentence that is otherwise constitutionally

valid is unconstitutional “as applied” to the individualized facts and circumstances

of a case. 773 N.W.2d at 884. Titus argues these rulings are in conflict and asks

us to overrule Wade. Even if we found his argument convincing, this court is not
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at liberty to overturn Iowa Supreme Court precedent. See State v. Miller, 841

N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally, it is the role of the supreme court

to decide if case precedent should no longer be followed.”); State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn

Iowa Supreme Court precedent.”).

      Titus also alleges the district court erred in failing to analyze his claim

under the “gross disproportionality” test articulated in Bruegger, and he requests

his case be remanded for an evidentiary hearing and a determination of whether

section 903B.2 is grossly disproportionate under the individualized facts of his

case. An individualized assessment of punishment is permitted only in “relatively

rare” cases where “an unusual combination of features . . . converge to generate

a high risk of potential gross disproportionality.” Bruegger, 773 N.W.2d at 884;

see also Ewing v. California, 538 U.S. 11, 30 (2003) (noting it is a “rare case in

which a threshold comparison of the crime committed and the sentence imposed

leads to an inference of gross disproportionality”). Generally, a sentence within

the bounds authorized by statute is not likely to be grossly disproportionate. See

Bruegger, 773 N.W.2d at 873.

      In determining whether a sentence is grossly disproportionate to an

individual defendant, the court must first “balanc[e] the gravity of the crime

against the severity of the sentence” to determine if an inference of gross

disproportionality exists. State v. Oliver, 812 N.W.2d 636, 647 (Iowa 2012); see

also Bruegger, 773 N.W.2d at 873. If a defendant cannot show an inference of

gross disproportionality, no further analysis is necessary.     See Oliver, 812
                                        4

N.W.2d at 650; see also State v. Clayton, No. 13-1771, 2014 WL 5862075, at *4

(Iowa Ct. App. Nov. 13, 2014).

       In his pro se motion to correct an illegal sentence, Titus alleges “that, as

applied to the charge of indecent exposure under Iowa Law, [the special

sentence] constitutes Cruel and Unusual Punishment in violation of the

prohibitions contained in the United States and Iowa Constitutions.” The motion

makes no specific allegation regarding an inference of gross disproportionality.

However, later in the same motion, Titus argues the ten-year special sentence

creates “an unjust outcome” when added to his fifty-three-day jail sentence.

Citing Weems v. United States, 217 U.S. 349, 371 (1910) (noting the Cruel and

Unusual Punishment Clause of the Constitution is directed “against all

punishments which, by their [excessive] length or severity, are greatly

disproportioned to the offenses charged”), Titus then claims the special sentence

violates his constitutional rights.

       Assuming Titus’s motion sufficiently states a gross-disproportionality

challenge, he is not entitled to an evidentiary hearing under the facts before us.

In Bruegger, the defendant was permitted to make a gross-disproportionality

challenge because his case involved the convergence of three factors that

presented a substantial risk the sentence could be grossly disproportionate. See

Bruegger, 773 N.W.2d at 884. Titus’s motion fails to assert any unique factors

that create an inference of gross disproportionality between the underlying crime

and his sentence. Without more, an evidentiary hearing was not necessary. See

State v. Huls, No. 15-0467, 2016 WL 903130, at *1 (Iowa Ct. App. Mar. 9, 2016)

(holding Huls failed to show an evidentiary hearing was warranted on his claim
                                       5


that his section 903B.2 special sentence was grossly disproportionate because

he failed to argue any factors created an inference of gross disproportionality);

State v. Reed, No. 13-0988, 2015 WL 566625, at *5 (Iowa Ct. App. Feb. 11,

2015) (holding an individualized evidentiary sentencing hearing was not required

under the Iowa Constitution because Reed did not show an inference of gross

disproportionality), aff’d in part as modified, vacated in part, 875 N.W.2d 693

(Iowa 2016); State v. Clayton, No. 13-1650, 2014 WL 7343315, at *1 (Iowa Ct.

App. Dec. 24, 2014) (“Here, Clayton’s motion to correct an illegal sentence did

not establish an inference of gross disproportionality between the underlying

crime and the sentence. Without more, we cannot say the district court should

have afforded him a hearing on his claim.”); White v. State, No. 13-0142, 2014

WL 468201, at *7 (Iowa Ct. App. Feb. 5, 2014) (holding White did not meet the

threshold showing of gross disproportionality because no “unique factors” made

the sentence an unusual one).

       Finally, Titus claims his right to effective assistance of counsel was

violated when the district court failed to appoint him counsel or afford him an

opportunity to be heard. “The Sixth Amendment safeguards to an accused who

faces incarceration the right to counsel at all critical stages of the criminal

process.” Iowa v. Tovar, 541 U.S. 77, 80-81 (2004). Because the language of

article I, section 10 of the Iowa Constitution is broader than the United States

Constitution, Titus argues our constitution should be read more expansively to

provide a right to counsel.

       The State argues Titus waived error on his claim he was denied his right

to counsel. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (holding the
                                         6


right to counsel may be waived). Titus failed to request he be appointed counsel

below, and the district court did not appoint counsel on its own motion. See Iowa

Code § 815.10(1)(a) (allowing the court to appoint counsel upon its own motion

or by application by an indigent person or a public defender). This failure waives

error. See State v. Cohrs, No. 14-2110, 2016 WL 146526, at *1-2 (Iowa Ct. App.

Jan. 13, 2016).

       Even if Titus did not waive error on his claim he was denied his right to

counsel, this claim would fail.   This court has held motions to correct illegal

sentences are collateral rather than a critical stage of the trial. See id. at *2-3.

Accordingly, the right to counsel does not apply. See id. at *3.

       For these reasons, we affirm the district court’s denial of Titus’s motion to

correct an illegal sentence.

       AFFIRMED.
