                   IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1269
                                 Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TROY DANIEL DOWELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      A defendant appeals a district court order extending a no-contact order.

AFFIRMED.



      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VAITHESWARAN, P.J.

        Troy Dowell appeals the extension of a no-contact order. Prior opinions of

this court summarize the background facts and early proceedings. See In re

Marriage of Dowell, No. 13-1281, 2014 WL 6977108, at *1-2 (Iowa Ct. App. Dec.

10, 2014) and Crabb v. Iowa Dist. Ct., No. 13-0814, 2014 WL 5243337, *1-3

(Iowa Ct. App. Oct. 15, 2014). The facts pertinent to this appeal are as follows.

        Dowell, who has three children, was convicted of several crimes, including

neglect of a dependent. The district court entered a sentencing no-contact order

restraining Dowell from having any contact with his children. The order was to

remain in effect until July 15, 2013. Meanwhile, Dowell and his wife divorced,

Dowell’s wife was granted sole custody of the children, and she moved to

Australia.

        A day before the no-contact order was slated to expire, the State filed a

motion to extend it. See Iowa Code § 664A.8 (2013). At a hearing on the

motion, the State offered a report prepared by a psychologist who met with the

children. Dowell’s attorney stated he had no objection to the exhibit.

        The district court extended the no-contact order for an additional five years

after concluding Dowell failed to carry his burden “to establish he no longer

poses a threat to the victims.” Dowell appeals, raising several challenges to the

extension. The State preliminarily counters with a request to dismiss the appeal.

We will begin there.

   I.        Dismissal of Appeal

        The State asserts the extension order was “only an auxiliary order

modifying the previously entered final judgment—it was not a final judgment on
                                          3

its own.”    See Iowa Code § 814.6(1)(a) (affording right of appeal from final

judgment).     We need not address whether the order was a final judgment

because the State later concedes we may treat Dowell’s notice of appeal as an

application for discretionary review.         See id. § 814.6(2)(e) (authorizing

discretionary review of “[a]n order raising a question of law important to the

judiciary and the profession”). The State nonetheless asserts we should deny

the application for failure to satisfy the “importance” standard.

         We have analogized orders entered under chapter 664A to temporary

injunctions and have stated temporary injunctions “usually deprive the

unsuccessful party of some right which cannot be protected by an appeal from

the final judgment.” See State v. Olney, No. 13-1063, 2014 WL 2884869, at *3

n.2 (Iowa Ct. App. June 25, 2014) (citing Wolf v. Lutheran Mut. Life Ins. Co., 18

N.W.2d 804, 810 (Iowa 1945)). Given the serious interest at stake in a five-year

extension of an order prohibiting contact with one’s children, we treat Dowell’s

notice of appeal as an application for discretionary review and grant the

application.

   II.      Subject Matter Jurisdiction

         Dowell argues, because his ex-wife and children no longer live in Iowa,

the district court lacked subject matter jurisdiction “to enter an order protecting

them.” We disagree. A legislative enactment confers subject matter jurisdiction

on the courts. State v. Wiederien, 709 N.W.2d 538, 540 (Iowa 2006). In this

case, the legislature granted the district court subject matter jurisdiction to extend

the no-contact order. See Iowa Code § 664A.8.
                                            4


          To the extent Dowell’s argument implicates the doctrine of personal

jurisdiction rather than subject matter jurisdiction, we are similarly unpersuaded

this doctrine forecloses the entry of a protective order. Because the district court

had personal jurisdiction over Dowell, the court was empowered to prohibit him

from contacting his ex-wife even if the court lacked personal jurisdiction over

Dowell’s ex-wife. See generally Bartsch v. Bartsch, 636 N.W.2d 3, 8-10 (Iowa

2001) (holding that divorces and protective orders are “status determinations,”

excepted from personal jurisdiction requirements); In re Marriage of Kimura, 471

N.W.2d 869, 875 (Iowa 1991) (holding even when court lacks personal

jurisdiction over absent spouse it retains “jurisdiction to grant a divorce to one

domiciled in the state but no jurisdiction to adjudicate the incidents of the

marriage, for example, alimony and property division”).

   III.      Sufficiency of the Evidence

          Iowa Code section 664A.8 provides:

                 Upon the filing of an application by the state or by the victim
          of any public offense referred to in section 664A.2, subsection 1
          which is filed within ninety days prior to the expiration of a modified
          no-contact order, the court shall modify and extend the no-contact
          order for an additional period of five years, unless the court finds
          that the defendant no longer poses a threat to the safety of the
          victim, persons residing with the victim, or members of the victim’s
          family. The number of modifications extending the no-contact order
          permitted by this section is not limited.

(Emphasis added.) Dowell contends the evidence was insufficient to establish

he continues to pose a threat to the safety of his children. He concedes the
                                          5


burden of proof rested with him but cites to undisputed evidence of the children’s

residence in Australia and his residence in an Iowa prison.1

       The district court acknowledged the absence of a “threat of direct physical

harm” but stated Dowell “failed to present sufficient evidence to demonstrate that

[] there would not be any emotional or psychological harm.” The record supports

this determination.   The psychologist who evaluated the children opined the

children “would suffer significant trauma at being forced to resume contact with

their biological father at this time. . . . [S]uch contact would be detrimental to

their mental health unless circumstances have changed significantly and they

were given meaningful assurances regarding their safety.” As noted, Dowell did

not object to this evidence.

       While Dowell contends he is hard-pressed to meet his burden as long as

he is prohibited from having contact with the children, the existing no-contact

order did not prevent him from showing he was a changed man. Dowell only

presented certificates verifying completion of a prison chemical-dependency

program and a work readiness program. His remaining evidence was either

dated or recapitulated the reasons for issuance of the original no-contact order.

On this record, we conclude the district court did not err in finding a failure of

proof by Dowell. See Iowa Code § 664A.8 (stating the court “shall” extend the




1
   Iowa Code section 664A.8 does not explicitly assign the burden of proof to the
defendant. However, in this proceeding, all concerned read the statute in this fashion.
Absent an assignment of error on this point, we see no basis for deciding whether this
allocation was appropriate. See State v. Wiederein, 708 N.W.2d 538, 542 (Iowa 2006)
(noting legislature’s failure to define burden of proof in analogous statute raised
constitutional concerns).
                                            6


no-contact order “unless the court finds the defendant no longer poses a threat to

the safety of the victim”).

   IV.      Ineffective Assistance of Counsel

         Dowell next contends his attorney was ineffective in failing to object to the

admission of the psychologist’s report. Dowell concedes he “was not facing a jail

sentence at this hearing, so it is not immediately clear that his right to a court-

appointed lawyer was implicated at all.” He continues, “[t]here are no provisions

of Iowa law that require the appointment of counsel at a hearing that is solely

about whether a no-contact order should be extended.” See State v. Dudley, 766

N.W.2d 606, 617 (Iowa 2009) (“Without a right to counsel, [a defendant] also has

no commensurate right to effective assistance from that counsel.”). Given these

concessions, we decline to address Dowell’s proposed procedures and remedies

for addressing omissions in counsel’s performance.

         Dowell also asserts he did not receive notice of the hearing on the motion

to extend. While he raises this issue under an ineffective-assistance-of-counsel

rubric, we address it directly. Suffice it to say the record establishes otherwise.

   V.       Remaining Arguments

         Dowell raises several additional arguments.          These arguments are

unpreserved, unsupported by authority, or unrelated to the issue raised in the

motion for extension of the no-contact order. Accordingly, we decline to address

them.

         We affirm the district court’s extension of the no-contact order.

         AFFIRMED.

         Scott, S.J., concurs; Tabor, J., dissents.
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TABOR, J. (dissenting in part)

       Respectfully, I dissent in part. I believe we should reach the merits of

Dowell’s ineffective-assistance-of-counsel claim. A public defender represented

Dowell at the July 2, 2013 hearing on extending the no-contact order. In my

view, that representation was appropriate because the hearing under section

664A.8 was a critical stage of the criminal proceedings.           See Iowa Code

§ 664A.1(1) (defining “no-contact order” as “court order issued in criminal

proceeding”).

       In all criminal prosecutions, the accused enjoys the right to have the

assistance of counsel for his defense. U.S. Const. amend. VI; Iowa Const., art. I,

§ 10. The right to counsel attaches in a criminal prosecution after the initiation of

adversarial judicial proceedings. Kirby v. Illinois, 406 U.S. 682, 689–90 (1972).

Once attachment occurs, the accused is entitled to counsel during any “critical

stage” of the post-attachment proceedings; “what makes a stage critical is what

shows the need for counsel’s presence.” Rothgery v. Gillespie Cnty, 554 U.S.

191, 212 (2008). Case law defines critical stages as proceedings between the

defendant and state agents that amount to “trial-like confrontations” at which

counsel would be helpful to the defendant in “coping with legal problems” or

“meeting his adversary.” Id. at 212 n.16.

       Sentencing is a critical stage of the criminal process. State v. Boggs, 741

N.W.2d 492, 506 (Iowa 2007). Even a post-sentencing hearing may be a critical

stage of the criminal proceedings. See State v. Alspach, 554 N.W.2d 882, 884

(Iowa 1996) (determining restitution hearing after sentencing at which the State

has compiled statement of pecuniary damages under Iowa Code section 910.3
                                        8

was critical stage); see also People v. Williams, 833 N.E.2d 10, 16 (Ill. App. Ct.

2005) (finding that hearing on motion to reconsider sentence was critical stage).

A relevant consideration for whether a stage is “critical” is whether the defendant

may lose certain rights if they are not exercised at that stage. Mempa v. Rhay,

389 U.S. 128, 135 (1967).

      Given these considerations, I would conclude the extension of a criminal

no-contact order is a critical stage of Dowell’s criminal proceedings requiring

assistance of counsel. In 2008, Dowell faced an eight-count trial information,

including three counts of child endangerment and three counts of neglect of

dependent persons.     A June 2008 order of protection prevented him from

interacting with his three children. In July 2008, Dowell entered an Alford plea to

five counts, including the three neglect counts involving his children. He received

an indeterminate prison term of twenty-one years, and the court extended the no-

contact order until July 2013. Dowell unsuccessfully sought to modify the order

in July 2010. In July 2013, the State sought to extend the no-contact order

another five years under section 664A.8.

      The State contends the extension of a no-contact order under section

664A.8 is akin to modifying a plan of restitution under Iowa Code section 910.7,

where no right to counsel exists. I disagree. Proceedings under section 664A.8

are more similar to section 910.3 hearings, where the defendant has the right to

counsel to contest the prosecutor’s statement of pecuniary damages augmenting

the original restitution order. See Alspach, 554 N.W.2d at 884 (supplements to

the original sentence implicate right to counsel). The renewal of a no-contact

order for five additional years under section 664A.8 imposes a supplemental
                                         9

burden related to the defendant’s original criminal sentence. See Wiederien, 709

N.W.2d at 542 (concluding predecessor to chapter 664A allowed court to extend

a no-contact order upon a defendant’s conviction, but not upon acquittal). It does

not merely modify the no-contact order originally imposed.            See State v.

Wentland, No. 11-1266, 2013 WL 105340, at *8-9 (Iowa Ct. App. Jan. 9, 2013)

(finding no right to counsel when defendant seeks to eliminate a no-contact

condition of probation).

       I realize our court has labeled a no-contact order as “civil in nature” for ex

post facto purposes. State v. Roby, No. 05–0630, 2006 WL 2706124, at *3 (Iowa

Ct. App. Sept. 21, 2006). But that label is not controlling in this case where we

are analyzing whether the hearing to extend the no-contact order is a critical

stage of the criminal proceedings.      A consequence may be civil rather than

punitive in nature, but if it is imposed during criminal proceedings, then Sixth

Amendment safeguards apply. See Janvier v. United States, 793 F.2d 449, 455

(2d Cir. 1986) (judge’s recommendation against deportation under 8 U.S.C.A

§ 1251(b) is part of sentencing process and therefore a critical stage of the

prosecution, despite fact that deportation is a civil proceeding).         Although

restitution is not punitive in nature for ex post facto purposes (State v. Allen, No.

13-0318, 2015 WL 161824, at *4 (Iowa Ct. App. Jan. 14, 2015)), if it is imposed

as a part of the original or supplemental sentencing order, it implicates the right

to counsel. See State v. Blank, 570 N.W.2d 924, 926-27 (Iowa 1997).

       We must consider whether the hearing under section 664A.8 was a “trial-

like confrontation” at which Dowell needed counsel to help him in “coping with

legal problems” or “meeting his adversary” and whether Dowell would lose
                                        10


certain rights if he did not exercise them at that stage. Section 664A.8 allows

either the victim or the State to seek an extension of the no-contact order. See

Ostergren v. Iowa Dist. Ct., 863 N.W.2d 294, 299 (Iowa 2015) (noting purpose of

provision was “to grant the court express authority to extend the duration of no-

contact orders when the circumstances require continuing protection”). In this

case, the State filed the motion and advocated for the extension at the July 2,

2013 hearing. Despite the fact that it was the movant, the State successfully

argued the burden was on Dowell to show he no longer posed a threat to his

children. But see Wilker v. Wilker, 630 N.W.2d 590, 596 (Iowa 2001) (placing

burden of proof on party seeking protection under Iowa Code section 235.5(2)).

If Dowell could not satisfy that burden, he would be prohibited from contacting his

children for another five years. In this adversarial setting, where the defendant

faced a considerable loss of rights, the assistance of counsel was crucial to

Dowell’s ability to prove he no longer presented a danger to the victims of his

crime. Accordingly, I would find the no-contact order extension hearing was a

critical stage of the criminal prosecution at which Dowell had a right to the

assistance of counsel.

      But even if Dowell was not entitled to court-appointed counsel in this case,

the fact is the district court did afford him a public defender at the extension

hearing. Once counsel was assigned by the court to represent him, Dowell had

the right to effective assistance of this counsel.   See Patchette v. State, 374

N.W.2d 397, 399 (Iowa 1985) (“It would seem to be an empty gesture to provide

counsel without any implied requirement of effectiveness.”). It is fundamentally

unfair to provide counsel to an indigent defendant but not require that counsel to
                                        11

perform competently. See Lozada v. Warden, 613 A.2d 818, 821 (Conn. 1992)

(“It would be absurd to have the right to appointed counsel who is not required to

be competent.”).

      To prevail on a claim of ineffective assistance of counsel, Dowell must

show that counsel both failed to perform an essential duty and prejudice resulted.

See State v. Ross, 845 N.W.2d 692, 697-98 (Iowa 2014) (citing Strickland v.

Washington, 466 U.S. 668, 694 (1984)). The prejudice prong requires proof by a

reasonable probability the result of the proceeding would have differed but for

counsel’s errors. See Strickland, 466 U.S. at 694.

      Turning to the merits of Dowell’s ineffective-assistance-of-counsel claim, I

believe counsel had a duty to object to State’s Exhibit 1, a three-page report

purported to be from the children’s psychologist in Australia. The psychologist

opined: “[T]he girls would suffer significant trauma at being forced to resume

contact with their biological father at this time.” The psychologist did not offer

evidence in support of her conclusion in the report. After the State introduced the

exhibit, Dowell’s defense counsel did no more than ask the court “to just keep in

mind that from this document, it’s not exactly clear . . . what documentation was

provided to this counselor.” Counsel did not challenge the document on grounds

of authentication, foundation, or hearsay. Moreover, counsel did not seek to

depose the counselor or to ensure she appeared as a witness.

      I also would find counsel’s omissions resulted in prejudice to Dowell. In

the ruling extending the no-contact order, the district court relied on the report

from the Australian psychologist, noting it was “uncontroverted by any
                                         12


professional testimony.” The court then found Dowell had not carried his burden

to establish he no longer posed a threat to his children.

       The State argues because the rules of evidence do not apply to

sentencing proceedings under Iowa Rule of Evidence 5.1101(c)(4), and because

the extension of the no-contact order was auxiliary to the sentencing, the rules of

evidence did not apply at the July 2, 2013 hearing. If the rules of evidence did

not apply, under the State’s reasoning, defense counsel did not breach an

essential duty in failing to object. The State analogizes to the relaxed evidentiary

standard for determining restitution. See State v. Edouard, 854 N.W.2d 421, 450

(Iowa 2014).

       I would distinguish a no-contact order extension hearing under section

664A.8 from sentencing and restitution hearings.            The foreclosure of the

defendant’s association with the victims, especially in this case where the victims

are his own children, implicates liberty interests not at stake in a discussion of

pecuniary damages. Cf. Ostergren, 863 N.W.2d at 298 (noting “important liberty

interests” of protected persons because they may be held in contempt and jailed

for aiding and abetting defendant’s violation of no-contact order); see State v.

Ness, 819 N.W.2d 219, 225 (Minn. Ct. App. 2012) (finding domestic abuse

protective order implicates a protected liberty interest by ordering defendant to

have no contact with a family member).

       Moreover, our court has compared no-contact orders under chapter 664A

to injunctions. Olney, 2014 WL 2884869, at *3. The rules of evidence apply

“more strictly” in hearings to determine a permanent injunction, than on an

application for temporary injunction. See Kleman v. Charles City Police Dep’t,
                                        13


373 N.W.2d 90, 95 (Iowa 1985). But even this relaxation of the rules of evidence

“does not permit a court to issue a temporary injunction solely on the basis of the

allegations contained in an unverified petition.”        Id.   In this case, the

psychologist’s report was little more than unverified allegations, not tested by

Dowell’s defense counsel.

      Because counsel provided ineffective assistance, I would reverse the

ruling extending the no-contact order and remand for an evidentiary hearing on

the State’s motion. At that hearing, I believe Dowell would be entitled to the

effective assistance of counsel.
